J-S20017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JASON PHILLIP THOMAS,

                         Appellant                  No. 805 WDA 2015


           Appeal from the Judgment of Sentence of April 22, 2015
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0001973-2014

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 11, 2016

      Appellant, Jason Phillip Thomas, appeals from the judgment of

sentence entered on April 22, 2015. On this direct appeal, Appellant’s court-

appointed counsel filed both a petition to withdraw as counsel and an

accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386

U.S. 738 (1967). We conclude that Appellant’s counsel has complied with

the procedural requirements necessary to withdraw.       Furthermore, after

independently reviewing the record, we conclude that the appeal is wholly

frivolous. We, therefore, grant counsel’s petition to withdraw and affirm the

judgment of sentence.

      The factual background and procedural history of this case are as

follows.   On April 8, 2014, Appellant shot and stabbed Stephon Bibbs



* Retired Senior Judge assigned to the Superior Court
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(“Bibbs”), who lived in the apartment above Appellant, on the landing of

their building’s steps. Appellant then stole Bibbs’ wallet and clothing. The

gun used in the murder was stolen and two other individuals were inside the

residence when the murder occurred.

        On August 7, 2014, Appellant was charged via criminal information

with first-degree murder,1 aggravated assault,2 robbery,3 two counts of

receiving stolen property,4 two counts of possessing an instrument of crime,5

three counts of recklessly endangering another person,6 and theft by

unlawful taking.7    On March 5, 2015, Appellant was found guilty of all 11

charged offenses.      On April 22, 2015, Appellant was sentenced to an

aggregate term of life imprisonment without the possibility of parole. This

timely appeal followed.8

        Appellant’s counsel raises one issue in his Anders brief:


1
    18 Pa.C.S.A. § 2502(a).
2
    18 Pa.C.S.A. § 2702(a)(1).
3
    18 Pa.C.S.A. § 3701(a)(1)(i).
4
    18 Pa.C.S.A. § 3925(a).
5
    18 Pa.C.S.A. § 907(a).
6
    18 Pa.C.S.A. § 2705.
7
    18 Pa.C.S.A. § 3921(a).
8
  On June 8, 2015, Appellant filed a concise statement of errors complained
of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On June 11,
2015, the trial court issued its Rule 1925(a) opinion.

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     Whether there was sufficient evidence to find Appellant guilty of
     [f]irst[-d]egree [m]urder, [r]obbery[,] and related charges[?]

Anders Brief at 4.

     Before reviewing the merits of this appeal, this Court must first

determine   whether   counsel    has    fulfilled   the   necessary   procedural

requirements for withdrawing as counsel.             See Commonwealth v.

Flowers, 113 A.3d 1246, 1248-1249 (Pa. Super. 2015) (citation omitted).

To withdraw under Anders, court-appointed counsel must satisfy certain

technical requirements. “First, counsel must petition the court for leave to

withdraw and state that after making a conscientious examination of the

record, he has determined that the appeal is frivolous.” Commonwealth v.

Bynum-Hamilton, 2016 PA Super 39, 7 (Pa. Super. 2016), quoting

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).                 Second,

counsel must file an Anders brief, in which counsel:

     (1) provide[s] a summary of the procedural history and facts,
     with citations to the record; (2) refer[s] to anything in the record
     that counsel believes arguably supports the appeal; (3) set[s]
     forth counsel’s conclusion that the appeal is frivolous; and (4)
     state counsel’s reasons for concluding that the appeal is
     frivolous.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015),

quoting Santiago, 978 A.2d at 361.

     Finally, counsel must furnish a copy of the Anders brief to his client

and “advise[] him of his right to retain new counsel, proceed pro se[,] or

raise any additional points that he deems worthy of the court’s attention,



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and attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).

      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting

McClendon, 434 A.2d at 1187.       It is only when both the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw. In the case at bar, counsel has met all of the above procedural

obligations. We now turn to whether this appeal is wholly frivolous.9

      The lone issue raised in counsel’s Anders brief is whether the

evidence was sufficient to find Appellant guilty. “Whether sufficient evidence

exists to support the verdict is a question of law; our standard of review is

de novo and our scope of review is plenary.” Commonwealth v. Tejada,

107 A.3d 788, 792 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa.

2015) (citation omitted). In reviewing a sufficiency of the evidence claim,

we must determine whether “viewing all the evidence admitted at trial in the

light most favorable to the Commonwealth as the verdict winner, there is

sufficient evidence to enable the fact-finder to find every element of the


9
 Appellant filed a response to counsel’s Anders brief in which he stated in a
conclusory fashion that the issue raised in counsel’s Anders brief was
meritorious.

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crime beyond a reasonable doubt.”        Commonwealth v. Gonzalez, 109

A.3d 711, 716 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015)

(internal alteration and citation omitted). “The evidence does not need to

disprove every possibility of innocence, and doubts as to guilt, the credibility

of witnesses, and the weight of the evidence are for the fact-finder to

decide.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015)

(citation omitted).

      In essence, Appellant argues that he was a victim and not the

perpetrator of the offense. He argues that two men, one Caucasian and one

African-American, shot him and Bibbs. He argues that the gun used in the

murder belonged to him until the day before the crime when he illegally sold

it.

      We conclude that this argument is wholly frivolous.             Appellant

admitted that the gun belonged to him until he allegedly sold it eight hours

prior to the murder.    Myisha Coles (“Coles”), who was Appellant’s live-in

girlfriend, stated that she did not see any third-parties at the scene of the

shooting or fleeing the shooting. Within one minute of police receiving a 911

call they set up a perimeter around the scene and did not witness any

individuals fleeing or any individuals that matched the description of the two

alleged perpetrators Appellant described.

      The forensic evidence was inconsistent with Appellant’s version of

events and consistent with the prosecution’s version of events. Specifically,



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Bibbs’ bloodstained, empty wallet was found in the duct work of Appellant’s

apartment.     Also in Appellant’s duct work were two spent cartridges fired

from the murder weapon.        Currency with Bibbs’ blood was also found in

Appellant’s couch.    A portion of the knife used to stab Bibbs’ was found

underneath pots and pans in Appellant’s apartment.       Appellant’s footprint

was found in the blood at the crime scene. The footprint was pointed in a

direction that was inconsistent with Appellant’s version of events but was

consistent with the Commonwealth’s version of events.       Bibbs’ blood was

also found on Bibbs’ door – which was inconsistent with Appellant’s version

of events but consistent with the Commonwealth’s version of events.

     Furthermore, the only evidence supporting Appellant’s version of

events, his own trial testimony, contradicted the four previous statements

Appellant provided police. Each time Appellant spoke to police, or testified

at trial, his story changed. The jury reasonably concluded that Appellant’s

continually evolving story proved Appellant was fabricating his version of

events.     Based upon the totality of this circumstantial evidence, the jury

reasonably determined that Appellant was not the victim of a botched

robbery attempt but was instead the murderer.

     Finally, because the victim was shot multiple times, the jury was

permitted to infer that Appellant acted with the specific intent to kill. See

Commonwealth v. Chamberlain, 30 A.3d 381, 394 (Pa. 2011) (citations

omitted).     We also conclude that the record contains ample evidence



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establishing each of the elements of the other offenses for which Appellant

was convicted. Accordingly, we conclude that there was sufficient evidence

to find Appellant guilty of all 11 charged offenses.

      In sum, we conclude that the lone issue raised in counsel’s Anders

brief is frivolous.   Furthermore, after an independent review of the entire

record, we conclude that no other issue of arguable merit exists. Therefore,

we grant counsel’s request to withdraw. Having determined that the issues

raised on appeal are frivolous, we affirm the judgment of sentence.

      Petition to withdraw as counsel granted.         Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2016




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