J.A21013/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
KAPRI DRAYTON,                              :
                                            :
                          Appellant         :     No. 736 EDA 2014

            Appeal from the Judgment of Sentence October 11, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0001979-2013

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 14, 2015

        Appellant, Kapri Drayton, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench convictions of carrying a firearm without a license and carrying a

firearm on public streets in Philadelphia.1 His attorney, Karl L. Morgan, Esq.

(“Counsel”) of the Defender Association, has filed an Anders2 petition for

leave to withdraw. Counsel’s brief presents three issues: the denial of his

suppression motion and the sufficiency of evidence for both firearms




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 6106, 6108.
2
 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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convictions.3     We grant Counsel’s petition to withdraw and affirm the

judgment of sentence.

        The trial court summarized the underlying facts as follows:

               On January 26, 2013, at approximately 6:44 p.m.,
           Officer [Michael] Tritz and his partner were in the area of
           North Edgewood Street, Philadelphia[, in a marked police
           car.4] According to Officer Tritz, the area is saturated with
           narcotics, gun violence, and gangs. The Officers [went] to
           the 1600 block of North Edgewood Street after the police
           radio reported gunshots on the block. Officer Tritz was
           informed by another Officer over the radio that he also
           heard gunshots in the same location. While driving on
           Edgewood Street, in the course of responding to the radio
           calls regarding the gunshots, Officer Tritz observed
           [Appellant] running off of Lansdowne [Avenue] onto the
           1600 block of Edgewood. When first observed, [Appellant]
           did not appear to have anything in his hands. When
           Officer Tritz was about fifty feet away, [Appellant] noticed
           the Police, stopped running, reached toward his waistband,
           and made a throwing motion with his right hand. When
           the throwing motion occurred, Officer Tritz noticed a
           firearm coming out of [Appellant’s] hand. At the time,
           there was ample lighting in the area.

              After [Appellant] made the throwing motion, . . . Officer
           Tritz stopped and exited his vehicle. Officer Tritz asked
           [Appellant] if he heard gunshots and inquired about what
           [Appellant] may have been running from. Officer Tritz
           then went to search the area to investigate what
           [Appellant] threw away.        His partner stayed with

3
  The certified record transmitted on appeal did not initially include the notes
of testimony of the combined suppression hearing and trial. Upon informal
inquiry by this Court, the trial court provided the transcript. We remind
Counsel the appellant bears the burden of “ensur[ing] the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.” See Commonwealth v.
B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc) (citations omitted).
4
    N.T., 8/19/13, at 13.



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         [Appellant]. A firearm was recovered from a nearby lawn
         [and] was determined to be a 380-caliber Bersa. After the
         firearm was recovered, Officer Tritz’s partner placed
         [Appellant] under arrest. . . . A certificate of non-license
         was submitted into evidence, which indicated that
         [Appellant] was not licensed to carry a firearm on January
         26, 2013.      The subject firearm was examined and
         determined to be fully operational at the time of
         [Appellant’s] arrest.

Trial Ct. Op., 11/25/14, at 1-2 (citing N.T., 8/19/13 at 6-7, 10-12, 14-16,

18, 22-24, 38-39).

      Appellant subsequently filed a motion to suppress. The trial court held

a hearing on August 19, 2013, at which Officer Tritz testified to the above

facts. The court denied the suppression motion, and the case immediately

proceeded to a bench trial, which incorporated the testimony of the

suppression hearing.    N.T., 8/19/13, at 32.     Appellant did not testify or

present evidence.    The court found Appellant guilty of carrying a firearm

without a license and carrying a firearm on public streets in Philadelphia.

      On October 11, 2013, the court imposed the following sentences to run

consecutively: (1) two to four years’ imprisonment for carrying without a

license, and (2) six to twelve months’ imprisonment for carrying in public.

Appellant did not file a post-sentence motion but took this appeal.5


5
 Appellant did not initially appeal, but on December 31, 2013, filed a timely
counseled petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
9546, to reinstate his direct appeal rights nunc pro tunc. The trial court
granted the petition, and on March 4, 2014, Appellant filed a notice of
appeal.




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     At this juncture, we note Appellant has been represented throughout

these proceedings and this appeal by several members of the Philadelphia

Defender Association.   The court directed Appellant to file a Pa.R.A.P.

1925(b) statement of matters complained of on appeal. Appellant’s attorney

filed a Rule 1925(b) statement, which raised one issue: the sufficiency of

evidence for carrying a firearm without a license.     His current counsel,

Attorney Morgan, now presents this Court with an Anders petition to

withdraw from representation and an Anders brief.

     We first examine whether Counsel complied with the requirements of

Anders and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

        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
        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 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.



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         Santiago, 978 A.2d at 361. 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 worth of the court[‘]s attention in addition to the
         points raised by counsel in the Anders brief.”

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (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).

      In the instant appeal, Counsel’s Anders petition avers the following.

He “made a conscientious examination of the record and has determined the

appeal would be wholly frivolous.” Counsel’s Pet. to Withdraw as Counsel,

3/9/15, at ¶ 2. He notified Appellant of his request to withdraw, provided a

copy of the petition to withdraw and brief, and advised him of his right to

proceed pro se or with new counsel. Counsel attached a copy of his letter to

Appellant. Furthermore, Counsel’s brief sets forth the facts and procedural

history of this case, pertinent law, and a discussion for why Appellant’s

issues are meritless. He again concludes this appeal is frivolous. In light of

the foregoing, we hold Counsel has complied with the requirements of

Santiago. See Orellana, 86 A.3d at 879-80. We note Appellant has not

filed a pro se or counseled brief. We thus examine the record to determine

whether the issues on appeal are wholly frivolous. See id. at 882 n.7.



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      As stated above, Counsel’s Anders brief presents three distinct issues:

the denial of Appellant’s suppression motion,6 the sufficiency of evidence for

carrying a firearm without a license, and the sufficiency of evidence for

carrying a firearm in public in Philadelphia. Appellant’s court-ordered Rule

1925(b) statement, however, raised only one claim: the sufficiency of

evidence for carrying a firearm without a license.

      Rule 1925(b) states in pertinent part: “Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4)     are waived.”     Pa.R.A.P. 1925(b)(4)(vii).   See also

Commonwealth v. McBride, 957 A.2d 752, 755 (Pa. Super. 2008) (“‘Any

issues not raised in a Pa.R.A.P. 1925(b) statement will be waived.’

Commonwealth v. Castillo, . . . 888 A.2d 775, 780 [(Pa. 2005)].”).7 We


6
  The specific suppression issue presented in the Anders brief is whether
“the abandonment of the firearm by [A]ppellant [was] the result of police
coercion.” Anders Brief at 9.
7
  In McBride, the defendant’s counsel failed to file a court-ordered Rule
1925(b) statement, and subsequently filed an Anders petition to withdraw
with this Court. McBride, 957 A.2d at 756. This Court reasoned counsel’s
failure to file a Rule 1925(b) statement was per se ineffectiveness, and
reasoned “we would normally remand for a concise statement nunc pro
tunc.” Id. (emphasis added) (citing Commonwealth v. Scott, 952 A.2d
1190 (Pa. Super. 2008)). However, the Court further opined that “Rule
1925 provides two options” to an attorney when directed to file a statement:
comply with the order and file a Rule 1925(b) statement, or file a Rule
1925(c)(4) statement of intent to file an Anders brief. McBride, 957 A.2d
at 757. The Court cited the note to Rule 1925(c) that “[e]ven lawyers
seeking to withdraw pursuant to the procedures set forth in Anders . . . are
obligated to comply with all rules, including the filing of a
Statement.” Id.



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also note Rule 1925(c) provides in part: “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.”              Pa.R.A.P.

1925(c)(4).   The note to this subsection states, “Even lawyers seeking to

withdraw pursuant to the procedures set forth in Anders . . . and

Commonwealth v. McClendon, . . . 434 A.2d 1185 ([Pa.] 1981) are

obligated to comply with all rules, including the filing of a Statement.”

Pa.R.A.P. 1925(c)(4), note.

      In Commonwealth v. Garang, 9 A.3d 237 (Pa. Super. 2010), the

defendant’s counsel filed a court-ordered Rule 1925(b) statement, in which

the sole sufficiency claim was that “the Commonwealth had no physical

evidence linking [the defendant] to the allegations and that according to two

of the alleged victims, the shooter was one of four people gathered

outside.”8 Id. at 243. Subsequently, the attorney filed an Anders petition

and brief with this Court.    Id. at 239-40.   This Court, however, found a

challenge to the sufficiency of evidence for attempted homicide waived



      The McBride Court then held that “absent the proper filing of any
statement of record by counsel, this Court cannot properly consider
counsel’s request to withdraw.” Id. at 758. It denied the attorney’s request
to withdraw and remanded for the filing of either a Rule 1925(b) concise
statement or a Rule 1925(c)(4) statement of intent to file an Anders brief.
Id.
8
  The trial court deemed the Rule 1925(b) statement untimely, but this
Court disagreed. Garang, 9 A.3d at 241-42.




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because it had “no direct counterpart in [the defendant’s] 1925(b)

Statement.” Id. at 242-44 (citing Pa.R.A.P. 1925(b)(4)(vii); Castillo, 888

A.2d at 780; Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009) (reiterating that when challenging sufficiency of evidence on appeal,

1925    statement    must    specify   elements   upon   which   evidence   was

insufficient)).

       In this appeal, Counsel opted to file a Rule 1925(b) statement and not

a Rule 1925(c)(4) statement of intent to file an Anders brief. Pursuant to

Garang, we are constrained to hold both the suppression issue and

sufficiency challenge to carrying a firearm in public are waived for Counsel’s

failure to include it in the Rule 1925(b) statement. See Garang, 9 A.3d at

243-44. We thus consider only the sufficiency of the evidence for carrying a

firearm without a license.

       This Court has stated:

             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 the fact-finder.          [I]n
          applying the above test, the entire record must be
          evaluated and all evidence actually received must be
          considered. . . .

Commonwealth v. Buford, 101 A.3d 1182, 1185-86 (Pa. Super. 2014)

(citation omitted), appeal denied, 114 A.3d 415 (Pa. 2015).

       The Crimes Code defines the offense of firearms not to be carried


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without a license, in part, as follows: “[A]ny person who carries a firearm in

any vehicle or any person who carries a firearm concealed on or about his

person, except in his place of abode or fixed place of business, without a

valid and lawfully issued license under this chapter commits a felony of the

third degree.” 18 Pa.C.S. § 6106(a)(1). “The issue of concealment depends

on the particular circumstances present in each case, and is a question for

the trier of fact.” Commonwealth v. Scott, 436 A.2d 607, 608 (Pa. 1981)

(citation omitted).

      The trial court aptly noted the issue in Appellant’s Rule 1925(b)

statement was whether the Commonwealth failed to prove he carried a

firearm either in a vehicle or concealed about his person. Trial Ct. Op. at 3.

The court opined:

         Officer Tritz testified credibly that when he first observed
         [Appellant, he] did not have any objects in his hand. As
         he approached [Appellant], and was roughly fifty feet
         away, he observed [Appellant] reach toward his waistband,
         remove an object with his right hand, and toss the object
         away from his body. Upon the release of the object from
         [Appellant’s] hand, Officer Tritz was able to identify the
         object as a firearm. He also testified that there was ample
         lighting at the time.

             The only reasonable inference to conclude is that prior
         to [Appellant] reaching to his waistband, the firearm was
         concealed on his person. Assuming, arguendo, that the
         firearm was on his person, but only partially concealed, in
         Commonwealth v. Berta, the court concluded that even
         a weapon only partially hidden on a person is still
         considered concealed. Commonwealth v. Berta, 514
         A.2d 921, 923 (Pa. Super. 1986). . . . The firearm was
         subsequently . . . determined to be fully operational.
         Further, [Appellant] was not licensed to carry the firearm


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         at the time of his arrest. Accordingly, for the foregoing
         reasons, there was sufficient evidence to convict
         [Appellant] of carrying a concealed firearm about his
         person.

Trial Ct. Op. at 4-5.

      We reiterate that “we may not weigh the evidence and substitute our

judgment for the fact-finder,” and the trial court specifically found Officer

Tritz’s testimony was credible. See Buford, 101 A.3d at 1185-86; Trial Ct.

Op. at 4-5.   We agree with the trial court’s analysis, and thus agree with

Counsel’s determination that Appellant’s sufficiency challenge is frivolous.

      Accordingly, we grant Counsel’s petition to withdraw and affirm the

judgment of sentence.

      Counsel’s petition to withdraw granted.         Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/14/2015




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