J-S17010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

SEVILLE J. ALI,

                          Appellant                  No. 3056 EDA 2016


        Appeal from the Judgment of Sentence Entered April 7, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005228-2014


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

MEMORANDUM BY BENDER, P.J.E.:                           FILED MAY 29, 2018

      Appellant, Seville J. Ali, appeals from the judgment of sentence of an

aggregate term of 10 to 20 years’ incarceration, imposed after he was

convicted, following a non-jury trial, of aggravated assault, 18 Pa.C.S. §

2702(a)(1), and possessing instruments of crime (PIC), 18 Pa.C.S. § 907(b).

Appellant seeks to raise several issues on appeal, including challenges to the

sufficiency and weight of the evidence to sustain his convictions. Additionally,

Appellant’s counsel, John Belli, Esq., seeks to withdraw his representation of

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.
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     The trial court summarized the facts of Appellant’s case, as follows:

          This is a case involving an incident that occurred on
     February 22, 2014 at 438 West Queen Lane where Appellant shot
     Complainant, Keith Chapelle[,] in the arm just outside Mr.
     Chapelle’s front door.

            Prior to February 22, 2014, Mr. Chapelle and Appellant had
     a cordial relationship. Mr. Chapelle ran a moving business with U-
     Haul to help people load and unload moving trucks. Appellant
     completed some moving jobs for Mr. Chapelle’s business and
     helped Mr. Chapelle find other workers. While Appellant worked
     for Mr. Chapelle, Mr. Chapelle found out that some of his other
     workers had noticed that Appellant habitually kept his doors to
     both his home and car open. Mr. Chapelle thought that these
     workers were planning on stealing from Appellant. Mr. Chapelle
     fired these workers and informed Appellant about what happened
     and that everything had been handled. Afterward[,] Appellant
     shook his hand and they both went to the corner store together.
     This occurred just over a month before the shooting.

            Mr. Chapelle continued to hire Appellant’s friends[,] and Mr.
     Chapelle had started to hear that Appellant did not like him.
     During this time, Appellant would have conversations with Mr.
     Chapelle’s wife where he would say that he felt like Mr. Chapelle
     was trying to set Appellant up. Appellant had told Mr. Chapelle’s
     wife during these conversations where Appellant felt threatened
     that, “bullets can go through floors.” After Mr. Chapelle found out
     that Appellant had a problem with him he no longer spoke to
     Appellant. Prior to February 22, 2014, Appellant and Mr. Chapelle
     had not argued.

            On February 22, 2014 at 9:00 PM, Mr. Chapelle had returned
     to his apartment building[,] which he shared with Appellant.
     Appellant’s apartment was directly under Mr. Chapelle’s. When
     Mr. Chapelle arrived to the building, Appellant was standing on
     the porch and then engaged in conversation with Mr. Chapelle.
     Mr. Chapelle then attempted to walk past him. Appellant …
     became physical with Mr. Chapelle. Appellant boxed Mr. Chapelle
     in so that he could not move. The two men beg[a]n arguing and
     Appellant said that, “If anything happens to him or his family he
     already told his people ‘second floor[.’”]




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           Mr. Chapelle’s wife then came downstairs to bring Mr.
     Chapelle inside their home. Mr. Chapelle and his wife turned the
     corner to enter Mr. Chapelle’s apartment through the door on the
     side of the house. While Mr. Chapelle and his wife turned the
     corner, Appellant entered his apartment. Appellant’s girlfriend
     Crystal then yelled, “No, don't do that.” When Appellant came
     back out of his apartment, he had a silver gun.

           Appellant approached Mr. Chapelle with the gun at his side
     while Mr. Chapelle was at his apartment door. When Appellant
     was ten feet away from Mr. Chapelle, Appellant raised the gun,
     pointed it at Mr. Chapelle’s chest and shot him in the left arm. As
     Mr. Chapelle fell to the ground, Appellant advanced towards him
     and yelled, “If you tell anybody, if you call the cops, I’ll kill you. I
     swear to God I’ll kill your family.” As Appellant stood over Mr.
     Chapelle, he heard another click from the gun but no shot was
     fired. Appellant left around the corner on the porch and Mr.
     Chapelle ran inside the home. The police arrived within minutes
     and took a statement from Mr. Chapelle. Afterward, Mr. Chapelle
     was transported to Temple Hospital.

            The first responding officer, Officer Matthew Lally, entered
     Appellant’s home upon arrival. During a search of the first floor
     of the apartment for other victims and Appellant, Officer Lally
     discovered a .380 [caliber bullet] in [] Appellant’s toilet. Detective
     James Sloan’s investigation revealed a trail of blood leading from
     Mr. Chapelle’s apartment entrance along the porch. Detective
     Sloan also found a spent .380 cartridge on the corner of the porch.
     That [fired cartridge] was placed on property receipt number
     3130139. After obtaining a search warrant and searching the
     home, Detective Sloan recovered nine .380 [caliber bullets], eight
     in the Appellant’s bedroom and one in the toilet. The nine [bullets]
     were placed on property receipt number 3130140.

            Tracey Brown is the next door neighbor to both Appellant
     and Mr. Chapelle and was present inside Appellant’s apartment
     just before the altercation. Ms. Brown, claimed to have seen a
     knife in Mr. Chapelle’s hand. Ms. Brown then went upstairs in her
     apartment which is adjacent to Appellant’s apartment. While
     inside her apartment, Ms. Brown heard one gunshot. When asked
     about the knife, Ms. Brown could not identify where the knife came
     from, how Mr. Chapelle was holding it, or what he was doing with
     it. When questioned by police that evening Ms. Brown did not
     mention that she had seen a knife. The first time Ms. Brown
     mention[ed] the knife [was] to Appellant’s lawyers. The record

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      does not indicate that a knife was recovered during police
      investigation.

             Upon taking the stand, Appellant claim[ed] that Mr. Chapelle
      emerged from his apartment to talk to Appellant. Appellant
      claim[ed] that Mr. Chapelle initiated the conversation by accusing
      Appellant of making threats against Mr. Chapelle’s daughter.
      During the altercation, Appellant claim[ed] that Mr. Chapelle
      pushed him against the door to Appellant’s apartment. Appellant
      claim[ed] to have seen a knife. Appellant claim[ed] that after
      pulling the knife, Mr. Chapelle charged after Appellant through the
      front door to his home. According to Appellant, Mr. Chapelle
      struggled with Ms. Brown to get through the door while holding
      that knife in his hand. As Mr. Chapelle was trying to come through
      the door, Appellant grabbed his gun and fired a shot at Mr.
      Chapelle while Appellant was standing in his living room. After
      firing the shot, Appellant claim[ed] to have hid[den] the gun
      behind his mantle four feet above the floor and fled. Upon
      investigation, Detective Sloan did not recover a gun from the
      apartment or any spent shell casings in the home.

            At the beginning of the trial, defense counsel raised an
      objection to the use of photographs marked C1 A through J on the
      grounds that he had not seen them before and they had not been
      passed in discovery.      The discovery letter provided by the
      prosecutor indicated that the photos had been passed in
      discovery. Upon inquiry from this [c]ourt, defense counsel said
      that his objection was not strenuous. This [c]ourt offered defense
      counsel all the time he needed to prepare using the photographs.
      After a recess, defense counsel thanked this [c]ourt and
      proceedings continued. During the proceedings, defense counsel
      referenced material included in the discovery.

Trial Court Opinion (TCO), 8/9/17, at 2-6 (citations to the record omitted).

      At the close of Appellant’s non-jury trial, the trial court convicted him of

aggravated assault and PIC. On April 7, 2016, the court sentenced Appellant

to 10 to 20 years’ incarceration for his aggravated assault conviction, and a

concurrent term of 2½ to 5 years’ incarceration for his PIC offense. Appellant

filed a timely post-sentence motion, which was denied by operation of law on



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August 15, 2016. He then filed a timely notice of appeal, and he also timely

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Therein, Appellant preserved

the following claims for our review:

      [I.] The evidence was insufficient as a matter of law to convict
      [Appellant] of Aggravated Assault. The evidence presented at trial
      was insufficient to show that [Appellant] attempted to cause
      serious bodily injury to another, or caused such injury
      intentionally, knowingly or recklessly under the circumstances
      manifesting an extreme indifference to the value of human life.

      [II.] The evidence presented at trial was insufficient to convict
      [Appellant] of aggravated assault because [Appellant] acted in
      self-defense and the Commonwealth did not disprove justification
      beyond a reasonable doubt.

      [III.] The evidence was insufficient as a matter of law to convict
      [Appellant] of [PIC].     The evidence presented at trial was
      insufficient to show that [Appellant] possessed an instrument of
      crime with the intent to employ it criminally.

      [IV.] The verdict of guilty with respect to the charge of aggravated
      assault is against the weight of the evidence to such a degree as
      to shock one’s conscience and sense of justice.

      [V.] The verdict of guilty with respect to the charge of [PIC] is
      against the weight of the evidence to such a degree as to shock
      one’s conscience and sense of justice.

      [VI.] The [t]rial [c]ourt erred in permitting the introduction of
      photographs marked as Commonwealth Exhibit C1 A through J,
      mid-trial, which had not been provided to [the] defense in
      violation of Pa.R.Crim.P[.] 573.

Appellant’s Pa.R.A.P. 1925(b) Statement, 10/5/16, at 1-2 (unnumbered). On

August 9, 2017, the trial court issued an opinion addressing these claims.

      On November 27, 2017, Attorney Belli filed with this Court a petition to

withdraw from representing Appellant. That same day, counsel also filed an


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Anders brief, discussing the above-stated issues and concluding that they are

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.

     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


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

2015) (citations and footnote omitted).

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

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

and procedural history, 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.     He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent legal authority. Attorney Belli states in his petition to withdraw that

he has supplied Appellant with a copy of his Anders brief. Additionally, he

attached to his petition to withdraw a letter directed to Appellant, in which he

informs Appellant of the rights enumerated in Nischan. Accordingly, counsel

has complied with the technical requirements for withdrawal.

      In satisfying our obligation to independently review the record to

determine if Appellant’s issues are frivolous, and to ascertain if there are any

other, non-frivolous issues he could pursue on appeal, we have examined the

certified record, the briefs of the parties, and the applicable law. Additionally,

we have reviewed the well-crafted opinion of the Honorable Diana L. Anhalt of

the Court of Common Pleas of Philadelphia County. We conclude that Judge

Anhalt’s thorough, well-reasoned opinion accurately explains why the issues

presented by Appellant are frivolous. Moreover, our review of the record has

revealed no other, non-frivolous issues that Appellant could assert herein.

Accordingly, we affirm Appellant’s judgment of sentence on the grounds set

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forth by Judge Anhalt in her opinion, and grant Attorney Belli’s petition to

withdraw.

      Judgment of sentence affirmed.       Petition to withdraw granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




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