J-A30044-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                 Appellee                  :
                                           :
                   v.                      :
                                           :
BRIAN KURT BANTUM,                         :
                                           :
                 Appellant                 :      No. 1476 WDA 2017

            Appeal from the Judgment of Sentence August 31, 2017
                in the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0002204-2016

BEFORE:      SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:            FILED JULY 14, 2020

     Brian Kurt Bantum (Appellant) appeals from the August 31, 2017

judgment of sentence imposed after a jury convicted him of person not to

possess a firearm, theft by unlawful taking, receiving stolen property, and

disorderly conduct.     Counsel for Appellant has filed a petition to withdraw

and 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.

     We provide the following background. On the evening of October 5,

2016, Kenton Knepp was drinking with two friends, Jeffrey Cruthers and

Gary O’Shell, at his apartment.      N.T., 6/8/2017, at 62-63, 74.     Shortly

before 8:00 p.m., Knepp’s next-door neighbor, Appellant, walked by Knepp’s



*Retired Senior Judge assigned to the Superior Court.
J-A30044-18


apartment. Knepp invited Appellant inside to spend time with Knepp and his

friends. Id. at 63, 74.

      Within a half hour, it became apparent to Knepp that Appellant was

highly intoxicated. Appellant was incoherent and stumbling around Knepp’s

apartment.    Appellant knocked over several items from a kitchen shelf,

breaking them, and almost knocked over Knepp’s television. Id. at 63, 75-

76. As a result, Knepp told Appellant to leave. Appellant did not leave, and

Knepp and Cruthers attempted to escort Appellant out of Knepp’s apartment.

Id. at 64, 76-77. As they approached the front door, Appellant attempted to

push back into the apartment and swung his fist at Cruthers. Knepp called

for O’Shell’s help, and the three men were able to push Appellant outside of

the apartment and onto the porch. Id. at 64-65, 77-78.

      In doing so, Appellant and Knepp both fell to the ground. Id. at 78.

As Knepp fell, his firearm slipped out of the friction holster on his right hip.

Knepp caught the firearm and placed it next to him as he pushed himself to

standing with both hands.    Id. at 68, 77-79, 89, 101. As soon as Knepp

lifted his hand off the firearm to stand up, Appellant reached for the firearm

and placed his hand on it.        Id. at 79, 86, 90.      Seeing this, Knepp

immediately backed into his apartment, and closed and locked the door.

Once inside, he told O’Shell and Cruthers that Appellant took his firearm and




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called the police.1   Knepp peeked through the door shortly thereafter, and

both Appellant and the firearm were gone. Id. at 66, 79-80, 91-92. Knepp,

O’Shell, and Cruthers remained inside the apartment until police arrived and

did not leave the apartment or porch that evening. Id. at 66-67, 70, 80-81.

Knepp removed the holster from his hip after calling the police. Id. at 82.

      Police Officer Fred Wasser responded within minutes of the call and

arrived at Knepp’s apartment at approximately 8:00 p.m.          Upon arrival,

Officer Wasser spoke to Knepp, O’Shell, and Cruthers on the porch of

Knepp’s apartment, all of whom appeared visibly afraid.           Id. at 106.

Simultaneously, Appellant’s girlfriend was on the porch of Appellant’s home,

attempting to have a conversation with the three men. Id. at 30-31, 107.

Police Officer Brian Miller arrived less than a minute later and spoke briefly

with Knepp. Officers Miller and Wasser then proceeded to Appellant’s home.

Id. at 29, 66, 70, 107-08.

      Appellant’s girlfriend told the officers she did not know Appellant’s

location.   Id. at 31, 108.   She consented to Officer Wasser’s request to

search the residence for Appellant. Officer Miller kept watch outside while

Officer Wasser and a backup responding officer searched the interior of the

apartment for Appellant to no avail. Id. at 31-32, 108-09.

1 Immediately before Knepp called the police, another neighbor, seeing the
altercation on the porch, called the police for assistance. As officers were on
their way, they received a second dispatch, this one based on Knepp’s call,
that a firearm had been taken. N.T., 6/8/2017, at 29, 105.




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        Officer Miller walked between Knepp’s and Appellant’s homes, and

found Appellant in the rear of Appellant’s home. Appellant was sitting in a

chair next to the back door.    A grill was to his right, within arms-reach.

Officer Miller radioed to Officer Wasser that he had found Appellant. Id. at

32, 109. As Officer Wasser approached the rear yard from inside the house,

Officer Miller ordered Appellant to show his hands.       Appellant stood but

failed to comply with Officer Miller’s orders, instead fumbling with his hands

inside his shirt and waistband.     Id. at 33.    Officer Wasser handcuffed

Appellant from behind. Appellant was angry, oppositional, and attempted to

walk away from Officer Wasser.     Officer Wasser notified Appellant that he

was being detained for theft of a handgun and provided him Miranda2

warnings. N.T., 6/8/2017, at 34, 110-12.

        Appellant denied any knowledge of a firearm.      After patting down

Appellant, Officer Wasser asked Appellant for the location of the firearm.

Appellant appeared highly intoxicated: he repeatedly tried to step away,

gritted his teeth, was unable to follow instructions or stay on a conversation

topic, was thick-tongued, and emanated a strong odor of alcohol. Following

more denials, Appellant ultimately told Officer Wasser, “Yeah, this isn’t good.

I’m going to take you to where the handgun is.” Id. at 34-35, 37, 112-13.




2   Miranda v. Arizona, 384 U.S. 436 (1966).




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      Still handcuffed, Appellant led Officers Miller and Wasser back to

Knepp’s apartment.    Knepp, O’Shell, and Cruthers remained on the porch

while Appellant pointed out various locations within the apartment that he

alleged contained the firearm.     None of these locations turned up the

missing firearm.   Id. at 35-36, 81, 114-15.      Inside the apartment, the

officers located a holster, as well as several magazines for the missing

firearm.   The officers seized these items because the firearm was still

missing. Id. at 54.

      Appellant was detained in Officer Wasser’s vehicle while Officers

Wasser and Miller continued to search for the missing firearm. At the same

time, neighbors searched their respective backyards for the missing firearm.

Id. at 38-39, 115-17. Officer Wasser ultimately located the firearm under a

tarp that was covering the grill in Appellant’s backyard – the same grill that

was within arms-reach of Appellant when he was first spotted by Officer

Miller. Id. at 39, 55, 118-19.

      The firearm was photographed, seized, and made safe.        It was fully

loaded, with a live round in the chamber.    After securing the firearm, the

officers confirmed that it belonged to Knepp and was the missing firearm.

Id. at 40-41, 83, 119.    Though initially the officers planned to return the

firearm to Knepp that evening, it was ultimately retained for testing.      No

DNA or fingerprints were found on the firearm.     Officer Miller’s fingerprint

was found on the magazine to the firearm from when he handled it while



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preparing paperwork to return the firearm to Knepp that evening. Id. at 42-

44, 57, 84, 120.

      Appellant was arrested and charged with person not to possess a

firearm, theft by unlawful taking, receiving stolen property, disorderly

conduct,   defiant   trespass,   public    drunkenness,    and   three   counts   of

harassment.3 Appellant proceeded to a one-day jury trial on June 8, 2017,

where the aforementioned facts were developed.            Additionally, the parties

stipulated that Appellant had a prior drug conviction that rendered him a

person prohibited from possessing a firearm. Id. at 130. Appellant testified

on his own behalf, stating that he did not take Knepp’s firearm that evening

or place it on his grill. At the conclusion of the trial, the jury found Appellant

guilty as indicated above.4

      On August 31, 2017, the trial court sentenced Appellant to an

aggregate term of five to ten years of incarceration. On September 5, 2017,

Appellant filed a post-sentence motion, challenging the discretionary aspects




3 One charge of carrying a firearm without a license was dismissed prior to
trial.
4 By simultaneous bench trial, the trial court found Appellant guilty of the
summary offenses of criminal trespass, public drunkenness, and harassment
(as to Knepp and Cruthers), and not guilty of harassment (as to O’Shell).
Order, 6/12/2017.




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J-A30044-18


of his sentence and the weight of the evidence.5 By order filed September

12, 2017, the trial court denied Appellant’s post-sentence motion.

      This timely-filed notice of appeal followed.6   Appellant’s counsel has

filed an Anders brief and petition to withdraw as counsel. Appellant did not

file a response. Accordingly, the following principles guide our review.

             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….


5 Although represented by counsel, Appellant also pro se filed a motion to
modify sentence on September 8, 2017. Because Appellant was represented
by counsel, his pro se motion was a nullity.
6 We do not fully recount the tortured procedural history of this case after
Appellant pro se filed a notice of appeal because we have already detailed it
in our several prior memoranda. See Commonwealth v. Bantum, 209
A.3d 492 (Pa. Super. 2019) (unpublished memorandum) (denying prior
counsel’s petition to withdraw and remanding for (1) the trial court to rule
on Appellant’s weight-of-the-evidence claim under the correct standard of
review; (2) new counsel to be appointed for Appellant; and (3) the inclusion
of necessary materials in the certified record); Commonwealth v. Bantum,
221 A.3d 239 (Pa. Super. 2019) (unpublished memorandum) (denying
current counsel’s petition to withdraw for failure to comply substantially with
the technical requirements of Anders, and directing counsel to file an
advocate’s brief or compliant Anders brief, petition to withdraw, and letter
to Appellant advising him of his rights); Commonwealth v. Bantum, 222
A.3d 809 (Pa. Super. 2019) (unpublished memorandum) (same);
Commonwealth v. Bantum, 226 A.3d 624 (Pa. Super. 2020) (unpublished
memorandum) (same); Commonwealth v. Bantum, ___ A.3d ___, 2020
WL 1889115 (Pa. Super. 2020) (unpublished memorandum) (reminding
counsel to file an advocate’s brief or compliant Anders brief). It suffices to
say, the appeal is properly before this Court and is finally ready for review.




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             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 …. 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 and unnecessary capitalization omitted). Our Supreme Court has

clarified portions of the Anders procedure as follows.

      [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 petition to withdraw and

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

technical requirements set forth above. We first consider the issue raised by

counsel, and then have the responsibility “to conduct a simple review of the

record to ascertain if there appear on its face to be arguably meritorious



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issues   that   counsel,   intentionally   or   not,   missed   or   misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en

banc).

      The sole issue arguably supporting an appeal cited by counsel is

whether there was sufficient evidence to sustain Appellant’s convictions

given the lack of DNA or fingerprint evidence from the firearm.7        Anders

Brief at 13-14.8

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there
      is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying the
      above test, we may not weigh the evidence and substitute our
      judgment for [that of] the fact-finder. In addition, we note that
      the facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of

7  Counsel does not identify which conviction(s) Appellant wanted to
challenge. Because Appellant’s argument is that the Commonwealth failed to
prove he was in possession of the firearm given the lack of DNA or
fingerprint evidence, we construe this as a challenge to his convictions of
person not to possess a firearm, theft by unlawful taking, and receiving
stolen property.
8 We observe that although counsel cited the standard of review for weight
of the evidence in discussing Appellant’s sufficiency-of-the-evidence claim in
his letter to Appellant, he applies the correct standard of review to
Appellant’s sufficiency-of-the-evidence claim in the Anders brief. Compare
Letter to Appellant, 5/4/2020, at 2 (unnumbered) with Anders Brief at 14-
17.




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      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire 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.

Commonwealth v. Johnson, 192 A.3d 1149, 1155 (Pa. Super. 2018)

(citation omitted).

      Illegal possession of a firearm may be established by
      constructive   possession.    With respect to constructive
      possession, this Court has held:

            When contraband is not found on the defendant’s
            person,     the    Commonwealth     must   establish
            “constructive possession,” that is, the power to
            control the contraband and the intent to exercise
            that control. The fact that another person may also
            have control and access does not eliminate the
            defendant’s constructive possession.... As with any
            other element of a crime, constructive possession
            may be proven by circumstantial evidence. The
            requisite knowledge and intent may be inferred from
            the totality of the circumstances.

      Commonwealth v. Haskins, [] 677 A.2d 328, 330 ([Pa.
      Super.] 1996)[]. Constructive possession is an inference arising
      from a set of facts that possession of the contraband was more
      likely than not.

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (some

citations omitted).

      In the instant case, to prove Appellant possessed Knepp’s firearm, the

Commonwealth presented circumstantial evidence that Appellant was in

constructive possession of the firearm. Knepp testified that Appellant took

Knepp’s firearm as Appellant was being forcibly removed from Knepp’s



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apartment. Officer Wasser ultimately located the firearm under a tarp that

was covering a grill in Appellant’s backyard – the same grill that was within

arms-reach of Appellant when he was first spotted by Officer Miller upon

responding to the scene. Knepp, Cruthers, and O’Shell did not leave Knepp’s

apartment or porch that evening between the initial altercation and the

finding of the firearm.     This testimony made it more likely than not that

Appellant had possessed the firearm. Accordingly, viewed in the light most

favorable to the Commonwealth as verdict winner, the evidence presented

by the Commonwealth was sufficient to establish Appellant’s possession of

Knepp’s firearm, notwithstanding Appellant’s statements to the contrary or

the lack of Appellant’s DNA or fingerprints on the firearm.

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

Appellant’s convictions based on the sufficiency of the evidence is frivolous.

Moreover, we have conducted “a simple review of the record” and have

found no “arguably meritorious issues that counsel, intentionally or not,

missed or misstated.” Dempster, 187 A.3d at 272.9 Accordingly, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.



9 In an earlier Anders brief, prior counsel considered and disposed of a
weight-of-the-evidence claim. Because the trial court had applied the wrong
standard of review in ruling on Appellant’s weight claim, we remanded for,
inter alia, a supplemental opinion ruling on Appellant’s weight claim under
the proper standard of review. See Bantum, 209 A.3d 492 (unpublished
memorandum). The trial court complied by filing a supplemental opinion.
Current counsel does not raise a weight claim in the Anders brief. Following
(Footnote Continued Next Page)




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      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2020




(Footnote Continued)   _______________________



our simple review, we conclude that there is no arguably meritorious weight
claim in this case.




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