J-S69014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ANTHONY LAMONT BOONE,

                         Appellant                 No. 510 MDA 2018


      Appeal from the Judgment of Sentence Entered March 14, 2018
             In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0000441-2017


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED DECEMBER 12, 2018

      Appellant, Anthony Lamont Boone, appeals from the judgment of

sentence of 72 to 144 months’ incarceration, imposed after a jury convicted

him of persons not to possess a firearm, 18 Pa.C.S. § 6105(a)(1). On appeal,

Appellant seeks to challenge the sufficiency of the evidence to sustain that

conviction.   Additionally, his counsel, Matthew P. Kelly, Esq., seeks to

withdraw from representing Appellant pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). After careful review, we affirm Appellant’s judgment of sentence and

grant counsel’s petition to withdraw.

      Briefly, on December 2, 2016, Appellant engaged in an altercation with

a woman at a club called the Getaway Lounge located in West Nanticoke,

Pennsylvania. See N.T. Trial, 3/12/18, at 31. During the argument, Appellant
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pulled out a small, black handgun. Id. Two patrons of the club restrained

Appellant, and an employee was able to take the gun from him. Id. at 52.

Shortly thereafter, the police arrived and arrested Appellant.    Id. He was

ultimately charged with receiving stolen property, persons not to possess a

firearm, terroristic threats, carrying a firearm without a license, recklessly

endangering another person, disorderly conduct, and harassment.

      On March 12, 2018, Appellant was tried and convicted by a jury on the

charge of persons not to possess a firearm. He also subsequently pled guilty

to receiving stolen property and terroristic threats. The remaining charges

were withdrawn.     On March 14, 2018, Appellant was sentenced to an

aggregate term of 72 to 144 months’ incarceration.

      Appellant thereafter filed a pro se document that the trial court treated

as a timely notice of appeal.    The court then ordered Appellant to file a

Pa.R.A.P. 1925(b) statement, but his counsel at that time, Joanna Bryn Smith,

Esq., did not comply with that order. Accordingly, on May 1, 2018, the trial

court issued an opinion deeming waived any issue(s) Appellant sought to raise

on appeal.

      Thereafter, Attorney Smith filed with the trial court a petition to

withdraw, which the court granted on May 10, 2018. However, Attorney Smith

did not notify this Court that she had been granted leave to withdraw.

Consequently, on May 30, 2018, this Court issued a per curiam order

remanding Appellant’s case for the trial court to discern whether he was

knowingly, intelligently, and voluntarily waiving his right to counsel, or to

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appoint a new attorney to represent him. On June 15, 2018, the trial court

appointed current counsel, Attorney Kelly. That same day, the court issued a

second Rule 1925(b) order and Attorney Kelly timely complied, stating the

following, single issue for our review: “Whether the Commonwealth proved by

sufficient evidence whether [Appellant] committed the crime of Person Not to

Possess, Use, Manufacture, Control, Sell or Transfer Firearms.”      Pa.R.A.P.

1925(b) Statement, 7/6/18, at 1. On August 8, 2018, the trial court issued a

Rule 1925(a) opinion deeming Appellant’s claim waived and/or meritless.

     On September 6, 2018, Attorney Kelly filed a petition to withdraw and

an Anders brief, concluding that Appellant’s sufficiency-of-the-evidence claim

is frivolous, and that Appellant has no other, non-frivolous issues he could

pursue herein. Accordingly,

     this Court must first pass upon counsel’s petition to withdraw
     before reviewing the merits of the underlying issues presented by
     [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
     290 (Pa. Super. 2007) (en banc).

     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 worthy of the court[’]s attention
      in addition to the points raised by counsel in the Anders brief.”
      Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
      2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct an independent review of the

record to discern if there are any additional, non-frivolous issues overlooked

by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted).

      In this case, Attorney Kelly’s Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history (although counsel omits citations to the record), he

refers to portions of the record that could arguably support Appellant’s claim,

and he sets forth his conclusion that Appellant’s appeal is frivolous. Attorney

Kelly also explains his reasons for reaching that determination, and supports

his rationale with citations to the record and pertinent legal authority.

Attorney Kelly states in his petition to withdraw that he has supplied Appellant

with a copy of his Anders brief. Additionally, he attached a letter directed to

Appellant to his petition to withdraw, in which he informs Appellant of the

rights enumerated in Nischan.         Accordingly, counsel has substantially

complied with the technical requirements for withdrawal.          We will now



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independently review the record to determine if Appellant’s issue is frivolous,

and to ascertain if there are any other, non-frivolous issues he could pursue

on appeal.

      Initially, we agree with the trial court’s conclusion that Appellant waived

his sufficiency-of-the-evidence issue by not specifying, in his Rule 1925(b)

statement, the element(s) upon which the evidence was allegedly insufficient.

See   Trial   Court   Opinion,    8/1/18,    at   2   (unnumbered)         (quoting

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (“If

[an a]ppellant wants to preserve a claim that the evidence was insufficient,

then the 1925(b) statement needs to specify the element or elements upon

which the evidence was insufficient.”)).

      Nevertheless, even if properly preserved, we would deem Appellant’s

issue frivolous. The offense of persons not to possess a firearm is defined, in

pertinent part, as follows:

      (a) Offense defined.--

         (1) A person who has been convicted of an offense
         enumerated in subsection (b), within or without this
         Commonwealth, regardless of the length of sentence or
         whose conduct meets the criteria in subsection (c) shall not
         possess, use, control, sell, transfer or manufacture or obtain
         a license to possess, use, control, sell, transfer or
         manufacture a firearm in this Commonwealth.

         (2)(i) A person who is prohibited from possessing, using,
         controlling, selling, transferring or manufacturing a firearm
         under paragraph (1) or subsection (b) or (c) shall have a
         reasonable period of time, not to exceed 60 days from the
         date of the imposition of the disability under this subsection,
         in which to sell or transfer that person’s firearms to another


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         eligible person who is not a member of the prohibited
         person’s household.

18 Pa.C.S. § 6105(a). Subsection (c) of section 6105 states that a person will

be subject to the prohibition of subsection (a) if they have “been convicted of

an offense under the act of April 14, 1972 … known as The Controlled

Substance, Drug, Device and Cosmetic Act … that may be punishable by a

term of imprisonment exceeding two years.” 18 Pa.C.S. § 6105(c)(2).

      Here, the Commonwealth presented evidence that in 2006, Appellant

was convicted of two counts of delivering cocaine, which is an offense under

The Controlled Substance, Drug, Device and Cosmetic Act that is punishable

by up to ten years’ incarceration. See 35 P.S. §§ 780-113(a)(30), (f)(1.1).

Therefore, the Commonwealth demonstrated that Appellant had a prior

conviction that disqualified him from lawfully possessing a firearm.

      Additionally, the Commonwealth proffered substantial evidence proving

that Appellant did, in fact, possess a gun.     Namely, Daniel F. Kratz, Jr.,

testified that on December 2, 2016, he was at the Getaway Lounge in West

Nanticoke when he observed Appellant get into an altercation with a woman,

during which Appellant displayed a gun. N.T. Trial at 30-31. Then, when Mr.

Kratz confronted Appellant and told him to leave the club, Appellant “pulled

[the] gun out on [Mr. Kratz].” Id. at 32. Mr. Kratz said the gun was “a little

black gun about five inches long….” Id. Mr. Kratz identified Appellant in court

as the man who possessed the gun at the Getaway Lounge. Id.

      Similarly, Shane Lovenduski testified that he was at the Getaway

Lounge on December 2, 2016, where he observed Appellant arguing with a

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woman. Id. at 38. Mr. Lovenduski stated that he approached Appellant, at

which point Appellant “proceeded to pull a gun out” and point it at Mr.

Lovenduski. Id. at 39, 40. Mr. Lovenduski identified Appellant in court as the

man who possessed the gun at the Getaway Lounge.          Id. at 40.   Finally,

Theresa Engle Kastendieck, who is employed at the Getaway Lounge, also

testified that she saw Appellant, whom she identified in court, pull out a

“small[] gun” on the night of December 2, 2016. Id. at 48, 51. She ultimately

took the gun from Appellant after patrons of the club restrained him. Id. at

52.

      Given this record, we would conclude that the evidence was sufficient to

sustain Appellant’s conviction for persons not to possess a firearm, even had

he properly preserved this claim in his Rule 1925(b) statement. Additionally,

our independent review of the record reveals no other, non-frivolous claims

that Appellant could raise herein. Consequently, we affirm his judgment of

sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2018




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