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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
DIEGO RIVERA,                           :         No. 1963 EDA 2014
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, June 13, 2014,
           in the Court of Common Pleas of Philadelphia County
            Criminal Division at Nos. CP-51-CR-0013542-2012,
                         CP-51-CR-0013543-2012


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED October 5, 2016

     Diego Rivera appeals from the judgment of sentence of June 13, 2014,

following his conviction of third-degree murder, robbery, aggravated assault

and related charges, including weapons offenses.         Appointed counsel,

Earl G. Kauffman, Esq., has filed a petition to withdraw and accompanying

Anders1 brief.   After careful review, we grant the withdrawal petition and

affirm the judgment of sentence.

     The facts of this case, as gleaned from the trial transcripts, may be

summarized as follows.     On September 1, 2012, Christopher Thompson




* Former Justice specially assigned to the Superior Court.
1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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(“Thompson”) was “hanging out” on the corner of Rosehill and Somerset

streets in Philadelphia selling drugs.        (Notes of testimony, 3/11/14 at

122-123.) Thompson testified that he had been “working that corner” for a

couple of months.       (Id. at 123.)      Thompson was engaged in a drug

transaction with a customer when appellant and an unidentified black man

approached him.         (Id. at 125.)      Thompson described appellant as

Puerto Rican.   (Id.)   Appellant and his cohort began cursing at Thompson

and telling him to “get the F off the block.” (Id. at 125, 128.) The black

male punched Thompson while appellant hit him over the head with a

semi-automatic handgun. (Id. at 125-126.) They took Thompson’s money

and drugs and told him to leave.         (Id. at 128-129.)    One of them told

Thompson, “whoever you are working for, show them I did this to you.”

(Id. at 129.)   “Show them I did this to you and tell them we are coming

back in a couple hours.”     (Id.)    Thompson described appellant as 5’8” to

5’9”, in his early 20s with a short beard and a neck tattoo.      (Id. at 131-

132.)

        Thompson returned to the area a few hours later.         (Id. at 134.)

Thompson was standing on the corner of Rosehill and Somerset, talking to a

girl, when he saw appellant.         (Id. at 134-135.)   Appellant was walking

toward Thompson, but then crossed the street and walked toward the

Yadi Market on Somerset.       (Id. at 135.)     Shortly thereafter, Thompson

heard gunshots and hid behind a car.          (Id. at 136.)   Thompson peeked



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through the car window and saw appellant firing shots. (Id.) Appellant then

ran down Rosehill and jumped into a car.         (Id. at 137, 151.)   After the

shooting, Thompson observed the victim, Kareem Tomlin, lying on the

ground with blood coming from his head. (Id. at 138.) Thompson gave a

statement to police and picked out appellant as the shooter in a photo array.

(Id. at 139-144.) Thompson also identified appellant at trial. (Id. at 133.)

      Yahaira Polanco (“Polanco”) testified that on September 1, 2012, she

was walking up Somerset Street towards her mother’s house when she

heard gunshots.     (Id. at 194-197.)       The shots were coming from the

direction of Yadi Market.   (Id. at 199.)    In a statement to police, Polanco

identified appellant as the gunman and picked his photo out of a photo

array.   (Id. at 217-219, 241-242.)         Polanco told police that when the

shooting started, she grabbed her kids and ran inside her mother’s house.

(Id. at 240-241.)   Through her mother’s door window, Polanco could see

appellant firing shots. (Id. at 241.) Afterwards, Polanco went outside and

saw the victim lying on the ground bleeding from his head. (Id.) Polanco

identified the victim as Kareem Tomlin, known as “Reem.” (Id. at 243.)2




2
  At trial, Polanco refused to identify appellant as the shooter. She admitted
that she was nervous about testifying and was worried about being a
material witness in a homicide case. (Id. at 208.) Her family still lives in
the neighborhood. (Id.) Polanco’s prior inconsistent statement to police,
identifying appellant as the shooter, was admitted as substantive evidence
under Pa.R.E. 803.1(1)(B), a writing signed and adopted by the declarant.


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      Police recovered video surveillance footage from two locations,

Yadi Market and also a private residence on Rosehill Street.      (Notes of

testimony, 3/12/14 at 111-112, 118.)        The video captured appellant’s

altercation with Thompson as well as appellant running from the scene of the

shooting and getting into a white car.    (Id. at 130-146; Commonwealth’s

Exhibit C-40.)    The incident with Thompson occurred at 11:21 a.m. on

September 1, 2012, and the shooting outside the grocery store occurred at

4:07 p.m.    (Id. at 132, 141.)     In addition, security cameras captured

appellant leaving Coleman Hall, a halfway house, on September 1, 2012.

(Id. at 74.) Appellant had a social pass to visit his mother from 10:00 a.m.

to 6:00 p.m. (Id. at 77, 101.) Appellant signed out at 9:47 a.m. and never

came back.       After he failed to return to the facility by 6:00 p.m. as

scheduled and was declared an absconder, counselors discovered that

appellant had cleaned out his room. (Id. at 101-102.) The shift supervisor

spoke with appellant’s stepfather who said he had not seen appellant that

day. (Id. at 101.)

      On September 4, 2012, the fugitive task force was assigned to locate

and apprehend appellant.     (Id. at 158-159.) A wanted poster was issued

with appellant’s picture and information.    (Id. at 159-160.)   Detectives

located appellant on September 9, 2012, but he fled through a bathroom

skylight.   (Id. at 162-163.)     On September 11, 2012, appellant was

apprehended at a different location. (Id. at 164-165.) During the ten days



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between the shooting and his apprehension, appellant had covered up the

distinctive tattoo on his neck, “Who Wants Gunplay,” with another tattoo.

(Id. at 82-85, 165-166; Commonwealth’s Exhibits C-34A, C-34B.)

      The victim died of a single perforating gunshot wound to his head.

(Notes of testimony, 3/11/14 at 184.) The bullet entered through the back

of his head and exited out the front, causing extensive injuries to his brain.

(Id.) The trajectory of the bullet was from back to front, right to left, and

traveling slightly upward. (Id. at 189-191.) There was no soot or stipple,

meaning that the gun was fired from beyond 2½ feet.         (Id. at 188-189.)

Police recovered seven fired cartridge cases (“FCC’s”), all fired from the

same .9 millimeter firearm.    (Notes of testimony, 3/12/14 at 51.)      Police

also recovered two bullets, which were fired from the same .9 millimeter

firearm.   (Id. at 55-56.)3   Police did not find the actual firearm that was

used. (Id. at 56.)

      On March 13, 2014, following a three-day jury trial, at case number

0013542 of 2012 (charging appellant with the murder of Kareem Tomlin),

appellant was found guilty of third-degree murder, carrying a firearm

without a license, carrying a firearm in public in Philadelphia, and possession



3
  Officer Gregory Welsh, the Commonwealth’s expert in the area of firearms
examination and identification, testified that it is impossible to compare an
FCC to a bullet. (Id. at 56.) Therefore, while the FCCs all came from the
same firearm, and the bullets came from the same firearm, Officer Welsh
could not testify with certainty that both the FCCs and the bullets came from
the same firearm. (Id.)


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of an instrument of crime (“PIC”).             (Notes of testimony, 3/13/14 at

152-153.)   At case number 0013543 of 2012 (charging appellant with the

robbery of Thompson), appellant was found guilty of robbery, aggravated

assault, criminal conspiracy, carrying a firearm in public in Philadelphia,

carrying a firearm without a license, and PIC.               (Id. at 153-154.)       On

June 13, 2014, the trial court imposed an aggregate sentence of 30 to

60 years’ incarceration.4

      On June 25, 2014, appellant filed an untimely post-sentence motion

which was denied as untimely on June 27, 2014.5 A timely notice of appeal

was filed on July 9, 2014.         On October 1, 2014, this court granted trial

counsel’s petition to withdraw and directed the trial court to determine

whether     appellant        was    eligible     for      court-appointed     counsel.

Commonwealth v. Rivera, No. 1963 EDA 2014, per curiam order

(Pa.Super. filed October 1, 2014). The trial court appointed Del Atwell, Esq.,

to   represent   appellant    on   appeal,     and     Attorney   Atwell   entered   his


4
  Appellant received 20 to 40 years for third-degree murder, 5 to 10 years
for robbery, and 2½ to 5 years on two of the firearms charges, to run
consecutively for an aggregate sentence of 30 to 60 years’ imprisonment.
(Notes of testimony, 6/13/14 at 38-39.)        On the remaining charges,
appellant received either concurrent sentences or no further penalty. (Id.)
5
   Pennsylvania Rule of Criminal Procedure 720 states, in relevant part:
“(1) Except as provided in paragraphs (C) and (D), a written post-sentence
motion shall be filed no later than 10 days after imposition of sentence.”
Pa.R.Crim.P. 720(A)(1). Therefore, appellant had until Monday, June 23,
2014, 10 days after sentencing, to file any post-sentence motions.
Appellant’s post-sentence motion was not filed until June 25, 2014, two days
late.


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appearance on October 6, 2014.        On November 7, 2014, appellant was

ordered to file a concise statement of errors complained of on appeal within

21 days pursuant to Pa.R.A.P. 1925(b). Appellant failed to comply, but was

given an extension until March 24, 2015.       In a letter to Attorney Atwell

dated March 10, 2015, the trial court noted that after he missed the

November 28, 2014 deadline, he was given an extension until February 6,

2015, but failed to file a Rule 1925(b) statement.        All transcripts were

available as of July 16, 2014.        Despite the trial court’s admonitions,

Attorney Atwell failed to comply with the trial court’s Rule 1925 order. On

April 15, 2015, the trial court filed a Rule 1925(a) opinion, finding all issues

waived.    Subsequently, on April 29, 2015, Attorney Atwell filed a

Rule 1925(b) statement together with a motion for extension of time.         On

July 31, 2015, this court granted Attorney Atwell’s motion to withdraw and

directed the trial court to appoint substitute counsel to represent appellant in

this appeal.

      On September 17, 2015, current counsel, Attorney Kauffman, entered

his appearance. On February 4, 2016, the appeal was dismissed for failure

to file a brief.    However, on February 16, 2016, this court granted

appellant’s application to reinstate the appeal and ordered appellant to file a

brief by March 14, 2016.       On April 13, 2016, well beyond this court’s

deadline, Attorney Kauffman filed an Anders brief.           An application to

withdraw was filed on April 14, 2016. On April 22, 2016, this court ordered



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Attorney Kauffman to provide a copy of the letter sent to appellant informing

him of his right to retain counsel or proceed pro se in this appeal, which was

not attached to his petition to withdraw as required by Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa.Super. 2005).           Attorney Kauffman

complied on May 2, 2016, attaching a copy of the letter to appellant

informing him of his rights under Anders.

     In his Anders brief, Attorney Kauffman reviewed the following issues

before concluding that the instant appeal was wholly frivolous:

           [1.]   Whether the appellant’s sentence was an illegal
                  sentence, and whether the proceedings were
                  invalid[?]

           [2.]   Whether the trial court’s jury instruction was
                  inadequate regarding the cooperating witness
                  charge to the jury[?]

           [3.]   Judgment of acquittal[.]

           [4.]   Whether the verdict was against the sufficiency
                  of the evidence[?]

           [5.]   Whether the verdict was against the weight of
                  the evidence[?]

           [6.]   Whether trial counsel and first appellate
                  counsel were ineffective, when the third prong
                  of the test was not met[?]

Anders brief at 5.

     Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”



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

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)

(en banc) (citation omitted).

           In order for counsel to withdraw from an appeal
           pursuant to Anders, certain requirements must be
           met, and 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.

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

     Upon review, we find that Attorney Kauffman has complied with all of

the above requirements. In addition, Attorney Kauffman served appellant a

copy of the Anders brief, and advised him of his right to proceed pro se or

hire a private attorney to raise any additional points he deemed worthy of

this court’s review.   Appellant has not responded to counsel’s motion to




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withdraw. As we find the requirements of Anders and Santiago are met,

we will proceed to the issues on appeal.6

      Appellant’s   first   issue   concerns    his   sentence   of   30-60   years’

imprisonment.       As Attorney Kauffman correctly observes, appellant’s

sentence was legal. (Anders brief at 12.) Furthermore, any discretionary

sentencing challenge would be waived for failure to raise it in the trial court.

“Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify



6
  As described above, Attorney Atwell failed to timely comply with the trial
court’s Rule 1925 order, which is considered per se ineffectiveness of
counsel and ordinarily this court would have to remand for a supplemental
trial court opinion. See Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal
case was ordered to file a Statement and failed to do so, such that the
appellate court is convinced that counsel has been per se ineffective, the
appellate court shall remand for the filing of a Statement nunc pro tunc
and for the preparation and filing of an opinion by the judge.”);
Commonwealth v. Veon, 109 A.3d 754, 762 (Pa.Super. 2015), appeal
granted in part on other grounds, 121 A.3d 954 (Pa. 2015) (“Where the
trial court does not address the issues raised in an untimely 1925(b)
statement, we remand to allow the trial court an opportunity to do so.”),
citing Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012).
The untimely filing of a Rule 1925(b) statement is considered the equivalent
of a complete failure to file; both represent per se ineffectiveness of trial
counsel. Commonwealth v. Burton, 973 A.2d 428, 432-433 (Pa.Super.
2009) (en banc). Nevertheless, it is not necessary to remand in this case
where all of appellant’s issues are either waived, not cognizable on direct
appeal, or without merit. As the Commonwealth observes, to remand for
the trial court to address claims that counsel has deemed frivolous would
serve little purpose. (Commonwealth’s brief at 15.) In the same vein, to
remand for a Rule 1925(b) statement nunc pro tunc would be pointless
because counsel would simply file a statement of intent to file an Anders
brief under Rule 1925(c)(4). Id.; see Pa.R.A.P. 1925(c)(4) (“In a criminal
case, counsel may file of record and serve on the judge a statement of intent
to file an Anders/McClendon brief in lieu of filing a Statement.”).


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the sentence imposed at that hearing.”       Commonwealth v. Hyland, 875

A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 890 A.2d 1057 (Pa.

2005), citing Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.

2003), appeal denied, 831 A.2d 599 (Pa. 2003). Issues not raised in the

lower court are waived on appeal. Pa.R.A.P. 302(a).

           A written post-sentence motion to reconsider
           sentence must be filed no later than ten days after
           imposition of sentence. Pa.R.Crim.P. Rule [720],
           42 Pa.C.S.A.   “The failure to do so waives any
           complaint concerning sentence that does not involve
           the    lawfulness   of    the    sentence    itself.”
           Commonwealth v. Koziel, 289 Pa.Super. 22, 432
           A.2d 1031 (1981). The purpose of the rule is to
           allow the sentencing court the first opportunity to
           modify its sentence. Id. at 24-25, 432 A.2d at
           1032.

Commonwealth v. Magnum, 654 A.2d 1146, 1148 (Pa.Super. 1995)

(footnote omitted).

     Here, appellant did not present a discretionary sentencing claim to the

trial court, either at the sentencing hearing or in his untimely post-sentence

motion. Therefore, any challenge to the discretionary aspects of appellant’s

sentence would be waived on appeal.7


7
  In his Anders brief, Attorney Kauffman incorrectly states that trial counsel
raised a sentencing claim in his untimely post-sentence motion. (Anders
brief at 17.) From our review of the certified record, no such claim was
advanced. (No. 13542-2012, “Motion for Post Trial Relief” filed 6/25/14 at
1-2; Docket #4.) At any rate, appellant’s untimely post-sentence motion is
a legal nullity and does not preserve any issue for appeal.               See
Commonwealth v. Wrecks, 931 A.2d 717, 719 (Pa.Super. 2007)
(observing that “[a]n untimely post-sentence motion does not preserve
issues for appeal.”) (citation omitted); Commonwealth v. Bilger, 803 A.2d


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     The second issue presented for our review is the adequacy of the trial

court’s jury instruction relating to Thompson and potential bias.     It was

established at trial that Thompson had two open cases for possession with

intent to deliver. (Notes of testimony, 3/11/14 at 159-160.) Following trial,

during the charging conference, the trial court offered to instruct the jury

that Thompson’s testimony should be received with caution:           “Certain

testimony subject to special scrutiny and you should examine closely and

carefully and receive with caution the testimony of Christopher Thompson if

you find that he believed he would receive a benefit from the Commonwealth

for his testimony.”   (Notes of testimony, 3/12/14 at 203-204.)      Defense

counsel replied, “That’s fine, Your Honor,” and the following day, the trial

court gave the instruction.   (Id. at 204; notes of testimony, 3/13/14 at

137-138.) At no time did defense counsel object to the instruction as given

or request a different instruction.    Therefore, the matter is waived.   See

Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the

charge may be assigned as error, unless specific objections are made

thereto before the jury retires to deliberate.   All such objections shall be

made beyond the hearing of the jury.”); Commonwealth v. Corley, 638

A.2d 985, 990 (Pa.Super. 1994), appeal denied, 647 A.2d 896 (Pa. 1994)




199, 202 (Pa.Super. 2002), appeal denied, 813 A.2d 835 (Pa. 2002)
(recognizing that post-sentence motion filed more than ten days after
sentence imposed is legal nullity).


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(“A defendant must object to a jury charge at trial, lest his challenge to the

charge be precluded on appeal.” (citations omitted)).

     Appellant’s third and fourth issues relate to the sufficiency of the

evidence to support the verdict.8

     When considering a challenge to the sufficiency of the evidence, this

court must view the evidence presented in a light most favorable to the

Commonwealth, the verdict winner, and draw all reasonable inferences

therefrom.    Commonwealth v. Ketterer, 725 A.2d 801, 803 (Pa.Super.

1999).   We must then determine whether the evidence was sufficient to

permit the fact-finder to conclude that all of the elements of the crimes

charged were proven beyond a reasonable doubt.          Id.   Any question of

doubt is for the fact-finder, unless the evidence is so weak and inconclusive

that as a matter of law no probability of fact can be drawn from the

combined circumstances. Id. at 804.

             The Commonwealth may sustain its burden of
             proving every element of the crime beyond a
             reasonable doubt by means of wholly circumstantial
             evidence. Moreover, in applying the above test, the
             entire trial record must be evaluated and all evidence
             actually received must be considered. Finally, the
             trier of fact while passing upon the credibility of
             witnesses and the weight of the evidence produced,
             is free to believe all, part or none of the evidence.

8
  As Attorney Kauffman observes, the trial court did grant judgment of
acquittal as to aggravated assault as a first-degree felony, intent to cause
serious bodily injury to Thompson. (Anders brief at 14; notes of testimony,
3/12/14 at 200-201.) The trial court charged the jury on aggravated assault
as a second-degree felony, causing bodily injury with a deadly weapon.
(Id.)


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Commonwealth v. George, 705 A.2d 916, 918 (Pa.Super. 1998), appeal

denied, 725 A.2d 1218 (Pa. 1998), quoting Commonwealth v. Valette,

613 A.2d 548, 549 (Pa. 1992) (citations and quotation marks omitted).

      First, we address the sufficiency of the evidence to sustain appellant’s

conviction for murder in the third degree.

                   Under 18 Pa.C.S.A. § 2502(c), third-degree
            murder encompasses all forms of murder which do
            not constitute first-degree murder (intentional
            killing) or second-degree murder (killing committed
            during the perpetration of a felony). In the context
            of third-degree murder, the Commonwealth need not
            establish a specific intent to kill, or even a specific
            intent to harm the victim. The Commonwealth need
            only establish a killing with malice, i.e., the death of
            another brought about by an intentional act which
            indicates a wickedness of disposition, hardness of
            heart,    wantonness,     cruelty,    recklessness    of
            consequences, or a mind lacking regard for social
            duty. Commonwealth v. Young, 494 Pa. 224,
            227, 431 A.2d 230, 232 (1981) (malice found where
            defendant pointed loaded gun at victim and gun
            discharged, even if it were fired accidentally and
            defendant meant only to scare the victim);
            Commonwealth v. Seibert, 424 Pa.Super. 242,
            251, 622 A.2d 361, 365-66 (1993), appeal denied,
            537 Pa. 631, 642 A.2d 485 (1994).              Malice is
            established where the defendant’s intentional act
            indicates that the defendant consciously disregarded
            an unjustified and extremely high risk that his
            actions might cause death or serious bodily harm.
            Seibert, supra at 250, 622 A.2d at 364. Malice
            may be inferred from all of the circumstances
            surrounding the defendant’s conduct, and may be
            inferred from the use of a deadly weapon on a vital
            part of the body.         Commonwealth v. Cruz-
            Centeno, 447 Pa.Super. 98, 106, 668 A.2d 536, 540
            (1995), appeal denied, 544 Pa. 653, 676 A.2d
            1195 (1996).


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Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa.Super. 1998)

(en banc), appeal denied, 739 A.2d 1056 (Pa. 1999).

      Instantly, it was established that appellant fired off seven rounds from

a .9 millimeter semi-automatic handgun, striking the decedent in the back of

the head, killing him instantly. The apparent motive for appellant’s actions

was to gain territory for drug sales.   Thompson and Polanco both picked

appellant’s photo out of a photo array and identified him as the gunman.

Appellant was also seen on video surveillance cameras fleeing the scene.

Furthermore, appellant purposely eluded police, which is evidence of

consciousness of guilt. See Commonwealth v. Harvey, 526 A.2d 330, 334

(Pa. 1987) (“It is a well-settled rule of law that if a person has reason to

know he is wanted in connection with a crime, and proceeds to flee or

conceal himself from the law enforcement authorities, such evasive conduct

is evidence of guilt and may form a basis, in connection with other proof,

from which guilt may be inferred.” (citations omitted)). Appellant even went

so far as to try to cover up his distinctive neck tattoo, “Who Wants Gunplay.”

Clearly, the evidence was overwhelmingly sufficient to prove that appellant

killed the victim and did so with malice aforethought.

      The evidence was sufficient to sustain the jury’s verdict on the other

charges as well, including criminal conspiracy, robbery, and aggravated

assault. Thompson testified that appellant and an unknown accomplice beat

him up and threatened him, telling him to “get the F off the block.”


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Appellant hit him over the head with a semi-automatic handgun. Thompson

testified that they acted in concert; “It was both of them coming at me.”

(Notes of testimony, 3/11/14 at 129.) They also took Thompson’s money

and drugs. (Id. at 128.) Thompson’s account was corroborated by video

footage of the incident.

      Regarding the firearms charges, the Commonwealth introduced proof

that appellant was not licensed to carry a firearm.    (Notes of testimony,

3/12/14 at 197.) The jury could reasonably infer that appellant possessed a

firearm, an instrument of crime, and did so with intent to employ it

criminally. Therefore, the evidence was also sufficient to support the charge

of PIC.     Based on the totality of the evidence, viewed in a light most

favorable to the Commonwealth as verdict winner, together with all

reasonable inferences, we agree with Attorney Kauffman that any sufficiency

challenge would be patently meritless.

      In his fifth issue, Attorney Kauffman addresses the weight of the

evidence.     However, this issue was not preserved in the trial court.

Accordingly, appellant’s weight claim is waived.        Pa.R.Crim.P. 607(A);

Commonwealth v. O’Bidos, 849 A.2d 243, 252 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (weight of the evidence claims must be

raised via oral, written, or post-sentence motions in the trial court for the

issue to be preserved for appeal (citations omitted)). While a weight claim




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was raised in appellant’s untimely post-sentence motion, that does not

preserve the issue for appeal. See Wrecks, 931 A.2d at 719.

        Finally, in his sixth issue for appeal, Attorney Kauffman questions

whether     prior   counsel   were   ineffective   for   failing   to   file   a   timely

post-sentence motion and failing to comply with Pa.R.A.P. 1925(b).

(Anders brief at 16-17.) These claims are not cognizable on direct appeal

and must await collateral review. Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002) (defendants should wait until the collateral review phase to raise

claims of ineffective assistance of counsel); Commonwealth v. Holmes, 79

A.3d 562, 576 (Pa. 2013) (reaffirming Grant and holding that, absent

specific circumstances not applicable here, “claims of ineffective assistance

of counsel are to be deferred to PCRA[9] review; trial courts should not

entertain claims of ineffectiveness upon post-verdict motions; and such

claims should not be reviewed upon direct appeal.” (footnote omitted)).

        For the reasons discussed above, we determine that appellant’s issues

on appeal are wholly frivolous and without merit or not cognizable on direct

appeal. Furthermore, after our own independent review of the record, we

are unable to discern any additional issues of arguable merit. Therefore, we

will grant Attorney Kauffman’s petition to withdraw and affirm the judgment

of sentence.




9
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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     Petition to withdraw granted. Judgment of sentence affirmed.



     Ransom, J. joins the Memorandum.

     Stevens, P.J.E. concurs in the result.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 10/5/2016




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