J-S33020-15

                                  2015 PA Super 134

COMMONWEALTH OF PENNSYLVANIA,                : IN THE SUPERIOR COURT OF
                                             :      PENNSYLVANIA
                      Appellee               :
                                             :
              v.                             :
                                             :
TYSHAWN HANKERSON,                           :
                                             :
                      Appellant              : No. 938 EDA 2014

        Appeal from the Judgment of Sentence February 18, 2014,
                 Court of Common Pleas, Lehigh County,
            Criminal Division at No. CP-39-CR-0001057-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

OPINION BY DONOHUE, J.:                                  FILED JUNE 8, 2015

     Tyshawn Hankerson (“Hankerson”) appeals from the judgment of

sentence imposed following his convictions of robbery, burglary and

conspiracy.        His court-appointed counsel (“Counsel”) has filed a petition

seeking to withdraw and a brief in support thereof pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).         Following our review, we deny Counsel’s request,

vacate the judgment of sentence and remand for resentencing.

     We begin with the relevant factual background, which the trial court

summarized as follows:

                     At approximately 11 a.m. on March 8, 2012,
              Megan Keinert was alone in her house located at 105
              Chestnut     Street,   Coplay,   Lehigh     County,
              Pennsylvania. She shared her home with her father,
              her brother, and her boyfriend.    While watching
              television in her bedroom on the third floor, Ms.
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          Keinert heard noise coming from her brother’s room
          on the second floor. Ms. Keinert, believing that her
          brother had returned home early from school, came
          down the stairs. At the time, she was holding her
          cellular telephone in her hand. She entered her
          brother’s room and saw a black male, approximately
          six feet tall, wearing a baseball cap and jacket. Ms.
          Keinert also noted a bit of “scruff” on the individual’s
          face and that he appeared shocked to see her.

                 Ms. Keinert asked the individual, “Can I help
          you?” and made eye contact with him.               The
          individual stepped back and then came forward
          toward Ms. Keinert and put a gun to her forehead.
          At that point, there was sunlight coming into the
          room and the individual was within arm’s reach of
          Ms. Keinert. Ms. Keinert believed the gun was a
          silver handgun, approximately five to six inches long.
          Ms. Keinert estimated that she observed the
          individual for approximately [thirty] seconds. The
          individual directed Ms. Keinert to sit down and look
          down. He asked her where money in the home was
          located and Ms. Keinert told him that there wasn’t
          any money in the home. He also inquired as to
          whether there were additional people in the home.
          She told him they were alone. He told Ms. Keinert to
          lie down and tied her hands with a shoe lace [sic].
          Ms. Keinert could hear the individual searching the
          rest of the second floor and then proceed to the third
          floor. After three to five minutes, Ms. Keinert stood
          up and began to look for something to defend herself
          with. She found a pocketknife, which she opened
          and put under the bed nearby.          The individual,
          having heard Ms. Keinert moving around, told her to
          lie back down.

                Ms. Keinert was able to detect two male voices
          on the first floor.       The individual she had
          encountered remained on the first floor for three to
          five minutes and then returned. Ms. Keinert was still
          on the floor. The individual put a towel and a gun to
          the back of her head and instructed Ms. Keinert to
          count to 300[,] and then left.



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                Ms. Keinert counted to 163, pulled off the
          towel … and called out. When no one responded,
          she left. She ran through the kitchen and out of the
          sunroom, to the outside.

                At approximately the same time, Allen
          Lindenmuth and his friend stopped for lunch at
          Benny’s Hot Dogs, located on Front Street in Coplay.
          Mr. Lindenmuth ate his lunch while sitting in his work
          vehicle, parked in front of the Keinert residence. He
          noticed a black male come out from the area
          between the house and fence, wearing a black hat,
          coat, and jeans, carrying two Giant grocery store
          reusable bags. Approximately one to one and a half
          minutes later, a female, later identified as Megan
          Keinert, exited the residence. She approached the
          vehicle, asked to borrow Mr. Lindenmuth’s cellular
          telephone, and stated that she had just been robbed.
          Mr. Lindenmuth attempted to chase the black male
          but was unable to locate him.

                                  ***

                 When the Coplay police arrived, Ms. Keinert
          related the encounter and a description of the
          individual. The family determined that after the
          robbery, a laptop computer, an iPod, video gaming
          equipment and games were taken from the second
          floor. Additionally, DVDs, a Blu-ray player, night
          vision binoculars and prescription pain medicine were
          taken from the home.

                                  ***

                A few days after the incident, Ms. Keinert went
          onto Facebook.     She had a “gut feeling” that
          someone who knew the layout of her home was
          involved in the burglary/robbery. Specifically, she
          believed that her father’s ex-fiance’s [sic] son,
          Nicholas, had something to do with the robbery. Ms.
          Keinert went onto Nicholas’ Facebook page and
          began to look at his “friends” list and then to



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           message posts on Nicholas’ page.      Ms. Keinert
           noticed a post of “[h]it me up” from an individual
           whom she believed she recognized as the individual
           she had encountered when she was robbed and her
           home was burglarized.

                  Ms. Keinert, conducting her own investigation,
           then visited that individual’s Facebook page where
           she saw photographs of the individual and his user
           name “Tyshawn Smash.” Upon Googling the name
           “Tyshawn Smash,” Ms. Keinert was directed to
           websites containing music recordings. Upon listening
           to the music, Ms. Keinert recognized the voice and
           believed that that was the individual who she
           encountered in her home. Ms. Keinert brought her
           “investigation” to the attention of the police.
           Eventually, the police were able to develop a lineup
           of possible suspects and included “Tyshawn
           Smash’s” picture.     It was later determined that
           “Tyshawn Smash” was the [a]ppellant, Tyshawn
           Henderson [sic]. Ms. Keinert picked [Hankerson’s]
           picture out immediately as the person who robbed
           her in her home. At trial, Ms. Keinert positively
           identified [Hankerson] as the man who entered her
           home and robbed her.

Trial Court Opinion, 8/26/14, at 3-5. At the conclusion of a three-day jury

trial, Hankerson was convicted of the offenses listed above. The trial court

sentenced Hankerson to an aggregate term of seven to twenty years of

imprisonment.   When fashioning this sentence, the trial court applied the

sentencing enhancement provided in 42 Pa.C.S.A. § 9712.      The trial court

denied Hankerson’s post-sentence motion and at Hankerson’s request,

Counsel timely filed this appeal.    Rather than file an advocate’s brief,

however, Counsel filed a petition seeking to withdraw and Anders brief.




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J-S33020-15


     A request by appointed counsel to withdraw pursuant to Anders and

Santiago gives rise to certain requirements and obligations, for both

appointed counsel and this Court.   Commonwealth v. Flowers, __ A.3d

__, 2015 WL 1612010, *1 (Pa. Super. Apr. 10, 2015).

           These requirements and the significant protection
           they provide to an Anders appellant arise because a
           criminal defendant has a constitutional right to a
           direct appeal and to counsel on that appeal.
           Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
           Super. 2007). This Court has summarized these
           requirements as follows:

              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.

           Woods, 939 A.2d at 898 (citations omitted).

           There are also requirements as to the precise
           content of an Anders brief:

              [T]he Anders brief that accompanies court-
              appointed counsel's petition to withdraw ...
              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



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J-S33020-15


               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.

Id. at **1-2. If this Court determines that appointed counsel has met these

obligations, it is then our responsibility “to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Id. at *2. In so doing, we review not

only the issues identified by appointed counsel in the Anders brief, but

examine all of the proceedings to “make certain that appointed counsel has

not overlooked the existence of potentially non-frivolous issues.” Id.

      Counsel has satisfied the procedural requirements of Anders and

Santiago.    He has filed a petition seeking to withdraw with this Court, in

which he states his belief that after an examination of the record, the appeal

is wholly frivolous. Attached to that petition is a copy of the letter he sent to

Hankerson, which indicates that he enclosed copies of his petition to

withdraw and Anders brief and advises Hankerson that he can retain new

counsel or proceed pro se to raise with this Court any additional points he

deems worthy, and further advises that if he wishes to do either, he must act

quickly.   Further, the content of Counsel’s Anders brief conforms to the




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J-S33020-15


Santiago requirements previously set forth. Accordingly, we undertake our

independent review to determine whether Hankerson’s appeal is wholly

frivolous.

      The first issue Counsel presents is that the identification process was

unduly suggestive and therefore improper. Anders Brief at 12. Hankerson

did not raise this issue before the trial court. It is axiomatic that an issue

cannot be raised for the first time on appeal. Commonwealth v. Strunk,

953 A.2d 577, 579 (Pa. Super. 2008); Commonwealth v. Haughwout, 837

A.2d 480, 486 (Pa. Super. 2003) (issues, even of constitutional dimension,

are waived if not raised in the court below); Pa.R.A.P. 302(a). Accordingly,

we agree with Counsel that this issue is frivolous.1

      Second, Counsel presents a challenge to the verdict as against the

weight of the evidence.     Anders Brief at 12-13.     The law pertaining to

weight of the evidence claims is well settled. The weight of the evidence is a

matter exclusively for the finder of fact who is free to believe all, part, or

none of the evidence, and determine the credibility of the witnesses.

Commonwealth v. Forbes, 867 A.2d 1268, 1273-74 (Pa. Super. 2005). In

determining a weight of the evidence claim, it is not the function of an

appellate court to re-assess the credibility of the witnesses’ testimony.


1
    Even if this issue were not waived, we would still conclude that it is
frivolous. As the facts above illustrate, Ms. Keinert’s identification of
Hankerson as the perpetrator was based on her own investigation, not on
the photo array that the police presented to her after she provided them
with Hankerson’s name and photo.


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J-S33020-15


Commonwealth v. Aguado, 760 A.2d 1181, 1184 (Pa. Super. 2000) (en

banc). An appellate court may not reverse a verdict unless it is so contrary

to the evidence so as to shock one’s sense of justice. Forbes, 867 A.2d at

1273-74.

      In this case, Ms. Keinert testified that she looked at Hankerson for

approximately thirty seconds during the course of the burglary; that she

heard Hankerson talking with another man on the first floor of her home;

that she recognized Hankerson immediately when she saw his picture on

Facebook; that Hankerson used the name “Tyshawn Smash” on Facebook;

and that upon hearing the voice of “Tyshawn Smash” (via the music

recordings that her investigation revealed), she was “one hundred percent

positive” that Hankerson was the man she encountered in her home. See

N.T., 1/15/14, at 13-76. This evidence, which the jury apparently accepted,

is sufficient to support the verdicts, and so Hankerson’s convictions under

these facts do not shock our sense of justice. Again, we agree with Counsel

that this is a frivolous issue for appeal.

      Although we agree with Counsel’s assessment as to the issues he

identified in his Anders brief, our independent review of the record has

revealed a clearly meritorious issue related to the trial court’s application of

42 Pa.C.S.A. § 9712.2       The trial court applied the mandatory minimum



2
 This Court has held that issues challenging the application of a mandatory
minimum sentencing statute are challenges to the legality of a sentence.


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J-S33020-15


enhancement provision found at § 9712 when it fashioned Hankerson’s

sentence based upon the jury’s explicit finding that Hankerson possessed a

gun when he committed the crimes at issue. N.T., 2/18/14, at 18.

     This statute provides, in relevant part, as follows:

           (a) Mandatory sentence.--Except as provided
           under section 9716 (relating to two or more
           mandatory minimum sentences applicable), any
           person who is convicted in any court of this
           Commonwealth of a crime of violence as defined in
           section 9714(g) (relating to sentences for second
           and subsequent offenses), shall, if the person visibly
           possessed a firearm or a replica of a firearm,
           whether or not the firearm or replica was loaded or
           functional, that placed the victim in reasonable fear
           of death or serious bodily injury, during the
           commission of the offense, be sentenced to a
           minimum sentence of at least five years of total
           confinement notwithstanding any other provision of
           this title or other statute to the contrary. Such
           persons shall not be eligible for parole, probation,
           work release or furlough.

           (b) Proof at sentencing.--Provisions of this section
           shall not be an element of the crime and notice
           thereof to the defendant shall not be required prior
           to conviction, but reasonable notice of the
           Commonwealth's intention to proceed under this
           section shall be provided after conviction and before
           sentencing. The applicability of this section shall be
           determined at sentencing. The court shall consider
           any evidence presented at trial and shall afford the
           Commonwealth and the defendant an opportunity to
           present any necessary additional evidence and shall



Commonwealth v. Mosley, ___ A.3d ___ 2015 WL 1774216, *12
(Pa. Super. Apr. 20, 2015). As such, they are not subject to waiver and this
Court may address the issue sua sponte. Id.; Commonwealth v. Orellana,
86 A.3d 877, 882 n.7 (Pa. Super. 2014).


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J-S33020-15


              determine, by a preponderance of the evidence, if
              this section is applicable.

42 Pa.C.S.A. § 9712(a)-(b). In a fairly recent decision, this Court found §

9712 unconstitutional, therefore rendering illegal a sentence formulated

thereunder.     See Commonwealth v. Valentine, 101 A.3d 801, 811-12

(Pa. Super. 2014) (finding that § 9712 violates the United States Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), which

requires that any facts leading to an increase in mandatory minimum

sentence must be presented to a jury and proven beyond a reasonable

doubt).   In Valentine, as in the present case, the jury made a specific

finding that the defendant possessed a firearm during the course of the

offense. We concluded that this was impermissible:

              Here, the trial court permitted the jury, on the
              verdict slip, to determine beyond a reasonable doubt
              whether Appellant possessed a firearm that placed
              the victim in fear of immediate serious bodily injury
              in the course of committing a theft for purposes of
              the mandatory minimum sentencing provisions of 42
              Pa.C.S.A. § 9712(a), and whether the crime occurred
              in whole or in part at or near public transportation,
              for purposes of the mandatory minimum sentencing
              provisions of 42 Pa.C.S.A. § 9713(a). The jury
              responded “yes” to both questions. In presenting
              those questions to the jury, however, we conclude,
              in accordance with [Commonwealth v.] Newman,
              [99 A.3d 86 (Pa. Super. 2014) (en banc),] that the
              trial court performed an impermissible legislative
              function by creating a new procedure in an effort to
              impose the mandatory minimum sentences in
              compliance with Alleyne.

Id. at 811.



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J-S33020-15


     Because this Court has found § 9712 to be unconstitutional,

Hankerson’s sentence is illegal.       Accordingly, we vacate Hankerson’s

judgment of sentence and remand for resentencing without consideration of

§ 9712.3

     Petition to withdraw denied.      Judgment of sentence vacated.   Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2015




3
   We note that as Valentine was decided while Hankerson’s appeal was
pending, he is entitled to the application of the new rule of law announced
therein. Newman, 99 A.2d at 90.


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