J-S53034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

EDDIE WILLIAMS

                             Appellant                No. 2117 MDA 2015


            Appeal from the Judgment of Sentence December 2, 2015
       in the Court of Common Pleas of Lebanon County Criminal Division
                        at No(s): CP-38-CR-0001948-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 24, 2016

        Appellant, Eddie Williams, appeals from the judgment of sentence

entered in the Lebanon County Court of Common Pleas. His attorney, Harry

W. Fenton, Esq. (“Counsel”), has filed an Anders1 petition for leave to

withdraw. Counsel’s brief presents two issues: whether the trial court erred

by (1) refusing to sever Appellant’s case from his co-defendant’s case and

(2) admitting recorded telephone conversations. We grant Counsel’s petition

to withdraw and affirm the judgment of sentence.

        Following a jury trial, Appellant was convicted of the following:

criminal homicide,2 criminal attempt/criminal homicide,3 violation of the


*
    Former Justice specially assigned to the Superior Court.
1
    Anders v. California, 386 U.S. 738, 744 (1967).
2
    18 Pa.C.S. § 2501(a).
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controlled substance, drug, device, and cosmetic act for possession with the

intent to deliver cocaine,4 criminal conspiracy/violation of the controlled

substance, drug, device, and cosmetic act,5 criminal conspiracy/criminal

homicide,6 aggravated assault,7 criminal conspiracy/aggravated assault,8

aggravated assault,9 criminal conspiracy/aggravated assault,10 robbery,11

criminal conspiracy/robbery,12 person not to possess, use, manufacture,

control, sell or transfer firearms,13 flight to avoid apprehension, trial, or

punishment,14 criminal conspiracy/flight to avoid apprehension, trial, or




3
    18 Pa.C.S. § 901(a).
4
    35 P.S. § 780-113(a)(30).
5
    18 Pa.C.S. § 903(a)(1).
6
    18 Pa.C.S. § 903(c).
7
    18 Pa.C.S. § 2702(a)(1).
8
    18 Pa.C.S. § 903(c).
9
    18 Pa.C.S. § 2702(a)(4).
10
     18 Pa.C.S. § 903(c).
11
     18 Pa.C.S. § 3701(a)(1)(i).
12
     18 Pa.C.S. § 903(a)(1).
13
     18 Pa.C.S. § 6105(a)(1).
14
     18 Pa.C.S. § 5126(a).



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punishment,15 and firearms not to be carried without a license.16      N.T.,

10/14/15, at 1236-45.

        We summarize the relevant factual and procedural history as follows.

On March 10, 2014, Appellant and his two co-defendants, Rick Cannon

(“Cannon”) and Akeita Harden (“Harden”), drove to an apartment complex

in Lebanon, Pennsylvania. N.T., 10/9/15, at 779. Patrolman James Gross

was dispatched around 9:55 a.m. to the apartment complex after gunshots

were heard. N.T., 10/6/15, at 29. It is undisputed that one man was killed

and another man was wounded.

        After arriving at the apartment complex, Gross saw two men enter a

car driven by a female. Id. at 32. The men were eventually identified as

Cannon and Appellant. Id. at 42, 53. The female driver was later identified

as Harden.     N.T., 10/9/15, at 787-88.   Gross told the men entering the

vehicle to stop; they did not, and a car chase ensued. N.T., 10/6/15, at 32.

Gross testified the car was moving at “very high speeds, weaving in and out

of traffic, at oncoming traffic” and was “posing great risk.”    Id. at 37.

Appellant fled the car, and a police officer found a handgun and cocaine in

the direction Appellant had run.     Id. at 45.    Appellant was eventually

apprehended in Philadelphia on October 6, 2014. N.T., 10/8/15, at 634-37.



15
     18 Pa.C.S. § 903(c).
16
     18 Pa.C.S. § 6106(a)(1).



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       Appellant was taken to the Lebanon County Correctional Facility.

While incarcerated, Appellant made phone calls and his phone conversations

were recorded.    See N.T., 10/9/15, at 704.      The Warden of the Lebanon

County Correctional Facility testified that inmates are notified that their calls

will be recorded. N.T., 7/7/15, at 30-34.

         Each inmate is provided a handbook.           They are also
         provided a telephone list . . . . It also serves as a waiver
         that they understand that anything that they are saying
         over the phone system that they use is subject to
         monitoring and recording and interpretation.

Id. at 30-31. The Warden further explained:

         We delegated the District Attorney’s office as being the
         chief law enforcement officer of the fact of conversations
         that rise to a level of criminal activity. . . . [W]e designate
         the District Attorney’s office as the authority to monitor
         any type of phone calls that may lead as to an
         investigative tool as well as also potential crimes that may
         not only happen within the prison, but also outside.

Id. at 34.

      On April 30, 2015, Appellant filed an Omnibus Pre-Trial Motion

including a motion to sever Appellant’s case and a motion to suppress the

recorded telephone conversations.        Appellant’s Pre-Trial Mot., 4/30/15.

These motions were denied following a hearing on July 7, 2015.             N.T.,

7/7/15, at 21, 39.

      Cannon pleaded guilty and was sentenced before Appellant’s October

2015 trial began.    N.T., 10/6/15, at 21. At trial, Appellant’s co-defendant

Harden incriminated Appellant while testifying about the events of March 10,



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2014, and her relationship with Appellant.        N.T., 10/9/15, at 753-95.

Harden was also cross-examined by Appellant’s counsel.        Id. at 795-880.

On October 14, 2015, Appellant was found guilty of all charges and was

sentenced to life imprisonment on December 2, 2015.        N.T., 10/14/15, at

1236-45; Trial Ct. Order, 12/2/15.     Appellant did not file a post-sentence

motion.

      This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal,17 and the trial court

filed a responsive Rule 1925(a) opinion.     The trial court opinion states in

pertinent part:

          [B]oth co-defendants testified as witnesses in the trial.
          Under, B[r]uton v. United States, 391 U.S. 123 (1968),
          when both co-defendants testify, any potential prejudice is
          cured because the person who utters the incriminating
          statement is subject to confrontation and cross-
          examination; thus ending the inquiry. For these reasons,
          we find the alleged error lacks merit.


17
   We note that in this appeal, counsel opted to file a Rule 1925(b)
statement and not a Pa.R.A.P. 1925(c)(4) statement of intent to file an
Anders brief. The note to this subsection states:

          This amendment allows a lawyer to file, in lieu of a
          Statement, a representation that no errors have been
          raised because the lawyer is (or intends to be) seeking to
          withdraw under Anders/McClendon. At that point, the
          appellate court will reverse or remand for a supplemental
          Statement and/or opinion if it finds potentially non-
          frivolous issues during its constitutionally required review
          of the record.

Pa.R.A.P. 1925(c)(4) note (citations omitted).



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                                     *    *    *

            This [c]ourt denied the motion to suppress at the
         hearing based on the testimony heard and the exhibits
         presented to it.    In denying the motion, this [c]ourt
         determined that the Wiretap Act was fully complied with:
         [Appellant] received verbal and written warnings that the
         telephone conversations were subject to recording, the
         people on the other end of the phone call were also
         warned that the conversation was subject to recording, the
         warden designated the District Attorney (the chief law
         enforcement officer) as having access to the recorded
         telephone conversations and the recordings were used in
         the prosecution/investigation of a crime.

            In reviewing the record, we see no error in this [c]ourt’s
         decision to deny the motion to suppress the recorded
         phone conversations. There was full compliance with the
         Wiretap Act in recording and disseminating the
         [Appellant’s] recorded conversations.

Trial Ct. Op., 1/27/16, at 5, 8-9.

      Counsel identifies the following issues in the Anders brief:

         1. Did the trial court err in refusing to sever the case of
         Appellant from the case involving his co-defendant, Akeita
         Harden?

         2. Did the trial [court] err in admitting into evidence and
         allowing the jury to hear recorded telephone conversations
         originating from the the [sic] Lebanon County Prison?

Anders Brief at 2.

      As a prefatory matter, we review Counsel’s petition to withdraw.

         This Court must first pass upon counsel’s petition to
         withdraw before reviewing the merits of the underlying
         issues presented by [the appellant].

           Prior to withdrawing as counsel on a direct appeal under
         Anders, counsel must file a brief that meets the



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         requirements established by       our   Supreme     Court   in
         Santiago. The brief 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 reasons for concluding 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, 361 (Pa.
         2009)]. Counsel also must provide a copy of the Anders
         brief to his client. Attending the brief must be a letter that
         advises the client of his right to: “(1) retain new counsel to
         pursue the appeal; (2) proceed pro se on appeal; or (3)
         raise any points that the appellant deems worthy of the
         court[’]s attention in addition to the points raised by
         counsel in the Anders brief.”

Commonwealth v. Orellana, 86 A.3d 877, 879-90 (Pa. Super. 2014)

(some citations omitted). If counsel complies with these requirements, “we

will make a full examination of the proceedings in the lower court and render

an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”

Id. at 882 n.7 (citation omitted).

      Instantly, counsel provided a factual summary of the case with

citations to the record. Anders Brief at 3-4. Counsel explained the relevant

law and discussed why Appellant’s claims are meritless, and noted that he




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found nothing in the record that could arguably support the appeal. Id. at

5-9. In conclusion, counsel’s Anders brief stated:

         For all of the reasons set forth above, and because counsel
         for Appellant has been unable to identify, and therefore
         advocate in favor of, any appealable issues, counsel
         believes and therefore concludes that the appeal is
         frivolous.

Id. at 10.    Counsel for Appellant provided Appellant with a copy of the

Anders brief and a letter advising Appellant of his rights. Counsel’s Mot. to

Withdraw, 3/10/16. In light of the foregoing, we hold Counsel has complied

with the requirements of Santiago.        See Orellana, 86 A.3d at 879-80.

Appellant has not filed a pro se or counseled brief.      We now examine the

record to determine whether the issues on appeal are wholly frivolous. See

id. at 882 n.7.

      First, the Anders brief raises the issue of whether the trial court erred

in failing to sever Appellant’s case from that of his co-defendant. Anders

Brief at 4. Appellant argues that Harden’s incriminating statements should

have been precluded from admission under Bruton v. United States, 391

U.S. 123 (1968).

      Our review is governed by the following principles:

             Severance questions fall within the discretion of the trial
         judge and an order denying severance will not be
         overturned on appeal absent an abuse of discretion. . . .
         When conspiracy is charged, a joint trial generally is
         advisable. . . . [S]everance should be granted only where
         the defenses are so antagonistic that they are
         irreconcilable–i.e., the jury essentially would be forced to
         disbelieve the testimony on behalf of one defendant in


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         order to believe the defense of his co-defendant. Thus, a
         defendant claiming error on appeal has the burden of
         demonstrating that he suffered actual, not speculative,
         prejudice because of the ruling permitting a joint trial.

Commonwealth v. Brown, 925 A.2d 147, 161-62 (Pa. 2007) (citations and

footnote omitted).

          “It would impair both the efficiency and the fairness of the
         criminal justice system to require . . . that prosecutors
         bring separate proceedings, presenting the same evidence
         again and again, requiring victims and witnesses to repeat
         the inconvenience . . . of testifying, and randomly favoring
         the last tried defendants who have the advantage of
         knowing the prosecution’s case beforehand.”

Commonwealth v. Travers, 768 A.2d 845, 847 (Pa. 2001) (citation

omitted).

      In Bruton, where the co-defendant did not testify, but gave

“powerfully incriminating extrajudicial statements of       a co-defendant,”

Bruton, 391 U.S. at 135, the United States Supreme Court stated:

         Not only are the incriminations devastating to the
         defendant but their credibility is inevitably suspect, a fact
         recognized when accomplices do take the stand and the
         jury is instructed to weigh their testimony carefully given
         the recognized motivation to shift blame onto others. The
         unreliability of such evidence is intolerably compounded
         when the alleged accomplice, as here, does not testify and
         cannot be tested by cross-examination. It was against
         such threats to a fair trial that the Confrontation Clause
         was directed.

Id. at 136 (footnotes and citation omitted).

         “[T]he right of cross-examination is included in the right of
         an accused in a criminal case to confront the witnesses
         against him secured by the Sixth Amendment. . . . [A]
         major reason underlying the constitutional confrontation


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           rule is to give a defendant charged with crime an
           opportunity to cross-examine the witnesses against him.”

Id. at 126 (citations omitted).

        The Pennsylvania Supreme Court held that Bruton applies only where

there is “introduction of a powerfully incriminating statement made by a

non-testifying co-defendant at a joint trial.” Commonwealth v. McCrae,

832 A.2d 1026, 1038 (Pa. 2003) (emphasis added). “Bruton is inapplicable

to statements made by an individual other than a non-testifying co-

defendant at a joint trial of co-defendants.” Id.

        Instantly, Appellant’s co-defendant testified and was cross-examined,

and therefore Bruton does not apply.            See N.T., 10/9/15, at 753-880;

McCrae, 832 A.2d at 1038.             Because Harden was cross-examined,

Appellant’s Sixth Amendment right was not violated. See Bruton, 391 U.S.

at 126. Therefore, there was no Bruton violation and the trial court did not

err in denying Appellant’s motion to sever. See Bruton, 391 U.S. at 136-

37; Brown, 925 A.2d at 161-62.

        Next, the Anders brief raises the issue of whether the trial court erred

in admitting recorded telephone conversations into evidence. Anders Brief

at 6.    Appellant does not challenge the fact that he was notified that his

conversations would be recorded.      Id. at 6. Rather, the brief argues that

the District Attorney should not have been given access to the telephone

conversation recordings without a warrant. Id. at 6-7.

        The standard of review is as follows:


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         [T]he admissibility of evidence is at the discretion of the
         trial court and only a showing of an abuse of discretion,
         and resulting prejudice, constitutes reversible error. An
         abuse of discretion is not merely an error of judgment, but
         is rather the overriding or misapplication of the law, or the
         exercise of judgment that is manifestly unreasonable, or
         the result of bias, prejudice, ill-will, or partiality, as shown
         by the evidence of record. Furthermore, if in reaching a
         conclusion the trial court overrides or misapplies the law,
         discretion is then abused and it is the duty of the appellate
         court to correct the error.

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (quoting

Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012)).

      The Wiretap Act allows inmates’ telephone calls to be recorded, but

recording is subject to certain limitations:

         (A) Before the implementation of this paragraph, all
         inmates of the facility shall be notified in writing that . . .
         their telephone conversations may be intercepted,
         recorded, monitored or divulged.

         (B) Unless otherwise provided for in this paragraph, after
         intercepting or recording a telephone conversation, only
         the superintendent, warden or a designee of the
         superintendent or warden or other chief administrative
         official or his or her designee, or law enforcement officers
         shall have access to that recording.

18 Pa.C.S. § 5704(14)(i)(A)-(B).

      Recordings should be divulged only if it is “necessary to safeguard the

orderly operation of the facility, in response to a court order or in the

prosecution or investigation of any crime.”       18 Pa.C.S. § 5704(13)(i)(C);

see Commonwealth v. Baumhammers, 960 A.2d 59, 79 (Pa. 2008).




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      In this case, the District Attorney was given access to the recordings

as the designee of the warden. N.T., 7/7/15, at 35; see also 18 Pa.C.S. §

5704(14)(i)(B). The Commonwealth admitted the telephone recordings into

evidence at trial. N.T., 10/9/15, at 708; see Baumhammers, 960 A.2d at

79. Therefore, there was no violation of the Wiretap Act and we agree with

the trial court’s opinion and counsel’s determination that there is no merit to

this claim. The trial court did not err in admitting the recorded telephone

conversations as evidence. See Serrano, 61 A.3d at 290; Glass, 50 A.3d

at 724-25.

      Our independent review of the record reveals no other issues of

arguable merit. See Orellana, 86 A.3d at 882 n.7. Accordingly, we grant

counsel’s petition for leave to withdraw and affirm the judgment of sentence.

      Counsel’s petition for leave to withdraw granted.          Judgment of

sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/24/2016




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