J-S62033-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                     v.                   :
                                          :
JEFFREY TAYLOR,                           :
                                          :
                  Appellant               :     No. 519 MDA 2017

          Appeal from the Judgment of Sentence December 30, 2014
               in the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002712-2013

BEFORE:     STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED FEBRUARY 16, 2018

     Jeffrey Taylor (Appellant) appeals nunc pro tunc from the December 30,

2014 judgment of sentence of three to six years of incarceration after a jury

found him guilty of one count each of burglary and theft by unlawful taking.

Counsel has filed a petition 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 grant counsel’s petition to withdraw

and affirm Appellant’s judgment of sentence.

     The testimony at trial established the following. On July 27, 2013, at

approximately 4:40 a.m., Jessica Mbaye heard glass smashing and looked out

her window. She saw a person wearing pants and a hoodie carrying a large

television box crossing the street. She called 911. Officers Timothy Minnick

and Daniel Lewis responded to the report. When Officer Minnick reached the



*Retired Senior Judge assigned to the Superior Court.
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area, he saw a male wearing a gray hoodie, dark pants, and a dark hat

crossing the street. That individual was later identified as Appellant. Officer

Minnick approached Appellant and noticed he was “disheveled, sweating,

[had] glossy bloodshot eyes, [and] slurred speech.” N.T., 11/3/2014, at 58.

He also had “an odor of alcohol emitting from his breath and person.” Id. at

59. Officer Minnick believed Appellant was intoxicated. Appellant told Officer

Minnick he was walking to his mother’s house, which is located a few miles

away.     Officer Minnick then called Officer Lewis for backup.    When Officer

Lewis arrived, he recognized Appellant from having seen him about 25

minutes earlier near Nardy’s TV & Appliance Store.               Officer Minnick

transported Appellant to the police station.     At the station, Appellant was

asked to remove his hoodie.

        Officer Lewis went to Nardy’s and observed damage to a window. He

called for additional help in securing the scene. Officer Lewis then met up

with Officer Minnick to retrieve an item of Appellant’s clothing, specifically his

hoodie. Officer Lewis contacted K-9 Officer Edward Sulima to bring his dog,

Athena, to Nardy’s. Athena sniffed the hoodie then found the TV near a set

of dumpsters behind some bushes.         Athena also detected the scent near

Nardy’s.

        Alfred Oeller, owner of Nardy’s, received a call from police telling him

that someone had broken into his store by throwing a brick through a window.

Oeller went to Nardy’s where he found that a box containing a Magnavox


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Phillips 50-inch flat screen TV was missing. When he had left the evening

before, that box had been placed by the front door for delivery to a customer.

Police eventually returned the TV to Oeller with significant damage.

      Appellant was charged with several crimes as a result of this incident.

He was arrested and released on bail. A jury trial was held, and on November

4, 2014,1 Appellant was found guilty of burglary and theft by unlawful taking.2

On December 30, 2014, Appellant was sentenced to three to six years of

incarceration. Appellant did not file a direct appeal.

      On January 13, 2016, Appellant pro se timely filed timely a petition

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Attorney Jeffrey Yelen was appointed, and he filed a supplemental petition

requesting the reinstatement of Appellant’s right to a direct appeal nunc pro

tunc. The petition was granted, and Appellant timely filed a notice of appeal

to this Court. Attorney Yelen then requested to withdraw as counsel, and the




1 The delay between the filing of charges and the jury trial was due to the fact
that Appellant absconded while on bail on at least one occasion.

2 The subsection of the burglary statute for which Appellant was convicted is
codified as follows: “A person commits the offense of burglary if, with the
intent to commit a crime therein, the person … enters a building or occupied
structure, or separately secured or occupied portion thereof that is not
adapted for overnight accommodations in which at the time of the offense no
person is present.” 18 Pa.C.S. § 3502(a)(4). Theft by unlawful taking is
defined as follows: “A person is guilty of theft if he unlawfully takes, or
exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S. § 3921(a).

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trial court permitted counsel to withdraw and appointed Attorney Matthew

Kelly to represent Appellant on his direct appeal.

      The trial court ordered that Appellant file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant filed a concise

statement raising two issues concerning the ineffective assistance of trial

counsel. The trial court filed an opinion holding that issues with respect to the

ineffective assistance of counsel are not available for review on direct appeal

and therefore Appellant’s judgment of sentence should be affirmed. Trial Court

Opinion, 5/8/2017, at 1.

      In this Court, counsel for Appellant filed both an Anders brief and a

petition to withdraw as counsel.3 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
      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.


3 On October 11, 2017, this Court filed a memorandum denying Appellant’s
petition to withdraw. Specifically, we concluded that counsel could not have
fulfilled his responsibilities because he failed to request and provide the jury
trial transcript in the certified record. Appellant’s counsel has now provided
the transcript, as well as a new Anders brief and petition to withdraw.
Accordingly, this case is ready for disposition.

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               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, 978 A.2d at 361.

        Based upon our examination of counsel’s newly-filed petition to

withdraw and Anders brief, we conclude that counsel has complied

substantially with the above requirements.4 Once “counsel has met these

obligations, ‘it then becomes the responsibility of the reviewing court to make

a full examination of the proceedings and make an independent judgment to


4   Appellant has not responded to counsel’s petition to withdraw.


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decide whether the appeal is in fact wholly frivolous.’” Commonwealth v.

Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978

A.2d at 354 n. 5).

      According to counsel, the only issue of arguable merit is “[w]hether the

evidence was sufficient to establish that Appellant was guilty of burglary and

theft by unlawful taking.”5 Anders Brief at 1 (unnecessary capitalization

omitted).

      We have expressed the following regarding a challenge to the sufficiency

of the evidence produced at trial.

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. 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. Nevertheless, the
      Commonwealth need not establish guilt to a mathematical
      certainty. Any doubt about the defendant’s guilt is to be resolved
      by 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.

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, [t]he fact that the evidence
      establishing a defendant’s participation in a crime is circumstantial
      does not preclude a conviction where the evidence coupled with
      the reasonable inferences drawn therefrom overcomes the


5   We recognize that this issue was not identified in Appellant’s concise
statement. However, “[i]n a criminal case, counsel may file of record and
serve on the judge a statement of intent to file an Anders [] brief in lieu of
filing a Statement.” Pa.R.A.P. 1925(c)(4). Accordingly, we conclude that
counsel’s failure to file a new concise statement under these circumstances
does not require us to find this issue waived.

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      presumption of innocence. Significantly, we may not substitute
      our judgment for that of the fact finder; thus, so long as the
      evidence adduced, accepted in the light most favorable to the
      Commonwealth, demonstrates the respective elements of a
      defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Hecker, 153 A.3d 1005, 1008 (Pa. Super. 2016) (citation

omitted).

      Here, Appellant’s counsel challenges the use of the hoodie as a means

to identify Appellant. Anders Brief at 6. In determining whether a particular

identification was reliable, the court

      should consider the opportunity of the witness to view the criminal
      at the time of the crime, the witness’[s] degree of attention, the
      accuracy of his or her prior description of the criminal, the level of
      certainty demonstrated at the confrontation, and the time
      between the crime and the confrontation. The opportunity of the
      witness to view the actor at the time of the crime is the key factor
      in the totality of the circumstances analysis.

             [E]vidence of identification need not be positive and certain
      to sustain a conviction. Although common items of clothing and
      general physical characteristics are usually insufficient to support
      a conviction, such evidence can be used as other circumstances
      to establish the identity of a perpetrator. Out-of-court
      identifications are relevant to our review of sufficiency of the
      evidence claims, particularly when they are given without
      hesitation shortly after the crime while memories were fresh.
      Given additional evidentiary circumstances, any indefiniteness
      and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014)

(citations omitted).

      In other words, the use of the hoodie was but one factor to consider

with respect to Appellant’s identification.     Instantly, Mbaye testified that


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shortly after she heard glass smashing, she saw a person wearing a hoodie

carrying a large TV box. See N.T., 11/3/2014, at 33. Police quickly responded

to the scene, and encountered a person wearing a hoodie. Id. at 58. Mbaye

identified Appellant as the person she saw. Id. at 36. Moreover, Officer Lewis

testified that he saw Appellant near Nardy’s just 25 minutes prior. Id. at 110.

With respect to the hoodie, it was the scent from that particular hoodie that

led to both Nardy’s and the TV itself. Id. at 90-92.     This testimony, when

taken together and believed by a jury, is sufficient to sustain Appellant’s

conviction.

      Based on the foregoing, we agree with counsel that a challenge to the

sufficiency of the evidence based upon Appellant’s identification and the use

of the hoodie is frivolous. Moreover, we have conducted “a full examination

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

Flowers, 113 A.3d at 1248. Thus, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

      Judge Stabile joins.




6  In his prior brief, Appellant’s counsel raised two issues concerning the
ineffective assistance of counsel. Absent circumstances not present here,
“claims of ineffective assistance of counsel are to be deferred to PCRA review;
trial courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal.”
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). Accordingly, we
agree with counsel that those issues are frivolous.

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        Judge Moulton did not participate in the consideration or decision of this

case.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/16/2018




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