J-S25028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MICHAEL TODD TORAN, JR.

                            Appellant                   No. 1295 WDA 2015


             Appeal from the Judgment of Sentence July 29, 2015
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000644-2015


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                 FILED APRIL 15, 2016

        Appellant, Michael Todd Toran, Jr., appeals from the July 29, 2015

aggregate judgment of sentence of 5 to 10 years’ incarceration, imposed by

the trial court after Appellant was convicted of possession of a firearm with

manufacturer number altered, firearms not to be carried without a license,

and possession of a firearm prohibited.1            With this appeal, Appellant’s

counsel has filed a petition to withdraw and an Anders2 brief, stating that

the appeal is wholly frivolous.         After careful review, we affirm and grant

counsel’s petition to withdraw.

____________________________________________


1
    18 Pa.C.S.A. §§ 6110.2(a), 6106(a), and 6105(a), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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      The record reveals that around 8:30 p.m. on October 9, 2013, Erie

City Police approached Appellant to effectuate an arrest warrant.          N.T.,

7/13/15, at 10, 15, 17.      Corporal Ryan Onderko testified that when he

approached Appellant, he “immediately took off running.”            Id. at 13.

Corporal Onderko was pursuing Appellant on foot when he noticed “two

items” fall from Appellant; “one was a metallic, heavy object, the other one

was a camouflage bandana.”       Id. at 16.   Corporal Onderko said that the

metallic object “appeared to be a gun, but at the time I was not sure.” Id.

Appellant kept running, but was eventually taken into custody.              Id.

Thereafter, the police recovered a revolver and the camouflage bandana

from where Corporal Onderko saw them fall. Id. Corporal Onderko sent a

request to the Pennsylvania State Police to see if Appellant was eligible to

have a license to carry a firearm. Id. at 22. The Pennsylvania State Police

returned official notification stating that Appellant did “not have a license to

carry.” Id. at 22-23; Commonwealth Exhibit 9.

      City of Erie Police Detective Dennis Oborski testified that on October 9,

2013, around 10:30 p.m., he arrived at the scene of Appellant’s arrest. Id.

at 28-29. Detective Oborski took possession of the revolver and “tagged it

into evidence.” Id. at 29-30. Detective Oborski testified that police “could

not locate a serial number, it was scratched off or what we call obliterated.”

Id. at 30.




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       Pennsylvania State Police Sergeant Antonio Ferraro testified to being a

forensic firearm examiner and was qualified as an expert in this field. Id. at

32-34.    Sergeant Ferraro was able to restore the original manufacturer’s

serial number from the revolver.           Id. at 37.   In addition, he was able to

determine that the “firearm was functional and capable of discharging the

type of ammunition for which it was manufactured.” Id. at 39.

       Appellant testified that on the evening of October 9, 2013, he “took off

running” because he “didn’t know it was the police that were chasing me. I

thought it was the same guys [who had been chasing me] earlier.” Id. at

47-48. Appellant testified that the revolver recovered by the police “didn’t

fall off my person” and he had “no idea” where it came from.             Id. at 49.

Appellant specifically testified, “[n]o, I wasn’t carrying that gun.” Id. at 57.

       Appellant was charged with the aforementioned firearm crimes.3 Prior

to trial, on July 10, 2015, Appellant filed a motion in limine seeking to sever

the charge of persons not to possess a firearm, asserting, inter alia, that the

charge required “evidence that [Appellant] was previously convicted of a

crime.” Motion in Limine, 7/10/15, at 1. On July 13, 2015, the trial court

entered an order severing the persons not to possess a firearm charge and

specified that the charge would be tried by the trial court.

____________________________________________


3
 Appellant was also charged with flight to avoid apprehension, 18 Pa.C.S.A.
§ 5126(a), but after a hung jury and mistrial, the trial court granted the
Commonwealth’s motion to nolle prosse the charge on August 7, 2015.



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       The case proceeded to trial on July 13, 2015. The jury found Appellant

guilty of possession of a firearm with an altered manufacturer’s number and

firearms not to be carried without a license. The trial court found Appellant

guilty of persons not to possess a firearm. On July 29, 2015, the trial court

sentenced Appellant to 5 to 10 years’ incarceration.4 Appellant did not file a

post-sentence motion. On August 21, 2015, Appellant filed his timely notice

of appeal.    The record is devoid of any filings, by either the trial court or

Appellant’s counsel, relative to Pennsylvania Rule of Appellate Procedure

1925. However, on September 1, 2015, the trial court filed a two-sentence

memorandum opinion stating, “In light of counsel’s Statement of Intent to

File an Anders/McClendon Brief in response to the Court’s Order to file a

1925(b) Statement, the Court has nothing of specificity to address pursuant

to [Appellant’s] appeal.        The Court, therefore, stands by the record set

forth.” Trial Court Opinion, 9/1/15.

       On September 29, 2015, Counsel sent Appellant a copy of the Anders

brief, along with a letter informing Appellant that she found no non-frivolous

issues to support his appeal, and advising him of his right to retain new

counsel to pursue the appeal, or to proceed pro se on appeal and raise any

____________________________________________


4
  Specifically, the trial court sentenced Appellant to concurrent terms in the
standard range of 5–10 years’ incarceration for possession of a firearm with
manufacturer number altered, 2½-5 years’ incarceration for firearms not to
be carried without a license, and 5–10 years’ incarceration for persons not to
possess a firearm.



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points that Appellant deemed worthy of the court’s attention in addition to

the points raised by Counsel in the Anders brief. See Commonwealth v.

Millisock, 873 A.2d 748 (Pa. Super. 2005).

        On December 16, 2015, Counsel filed her Anders brief and application

to withdraw as counsel with this Court, in which she presented the following

issue for our review.5

               Whether the trial court abused its discretion in
               allowing the jury to hear evidence of [Appellant’s]
               prior convictions relating to the persons not to
               possess firearms charge as it unreasonably
               prejudiced the jury[?]

Anders Brief at 4.6

        “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”      Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                     [W]e hold that in 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
____________________________________________


5
    Appellant did not file a reply.
6
  By letter dated January 13, 2016 and docketed January 14, 2016, the
Commonwealth advised this Court that it would not file a responsive brief.



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              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.
Id. at 361.

      Pursuant to Millisock and its progeny, counsel seeking to withdraw on

direct appeal must also meet the following obligations to his or her client.

              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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).       “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”        Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,

“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel.”




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Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal.     Third, counsel concluded that she had “found no

meritorious issues that I can raise on Appellant’s behalf.” Anders Brief at 7.

Lastly, counsel has complied with the requirements set forth in Millisock.

See Letter from Counsel to Appellant, dated 9/29/15.         As a result, we

proceed to conduct an independent review to ascertain if the appeal is

indeed wholly frivolous.

      Appellant maintains that the trial court abused its discretion “in

permitting the jury to hear testimony relating to the Persons Not to Possess

Firearms charge.” Anders Brief at 5. Even though the charge was severed

and tried by the trial court, Appellant asserts that permitting the testimony

“unreasonably prejudiced” the jury. Id.

      We initially note that Appellant addressed this issue in his motion in

limine, where he sought severance of the persons not to possess a firearm

charge and averred, “[i]t is axiomatic that the Persons Not to Possess charge

requires evidence that [Appellant] was previously convicted of a crime. The

other charges do not require evidence of a prior conviction.”       Motion in


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Limine, 7/10/15, at 1.      The trial court granted Appellant’s request for

severance.

      The Crimes Code defines persons not to possess a firearm as follows.

             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.

18 Pa. C.S.A. § 6105.

      In our review of the transcript from the jury trial, in its entirety, we

find no testimony “relating to the persons not to possess firearms charge.”

Officer Onderko testified that Appellant did not have a license to carry a

firearm, which was one of the charges before the jury. N.T., 7/13/15, at 22-

23. Officer Onderko also testified that he was looking for Appellant because

there was a warrant for Appellant’s arrest. Id. at 10, 17. Appellant testified

that he thought he was being chased not by the police, but by others who

were after him because he owed them money for drugs. Id. at 53-55. And

in his closing argument, the Prosecutor stated that Appellant was “wanted by

the police” who were “go[ing] to arrest him.”          Id. at 65.       The above

statements imply criminal activity by Appellant, but the record is devoid of

any reference to a criminal conviction.

      Based on the foregoing, we agree with counsel that Appellant’s

evidentiary issue lacks merit. Furthermore, we have reviewed the certified


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record consistent with Flowers and have discovered no additional arguably

meritorious issues. Accordingly, we grant counsel’s petition to withdraw and

affirm the July 29, 2015 judgment of sentence.

     Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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