J-S65043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRED LAWTON,

                            Appellant                No. 1086 EDA 2014


            Appeal from the Judgment of Sentence January 9, 2014
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0001488-2013


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 16, 2014

        Appellant, Fred Lawton, appeals from the judgment of sentence

imposed on January 9, 2014, following his jury conviction of burglary.1

Appellant’s counsel has filed a brief and a petition to withdraw under Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm

the judgment of sentence and grant counsel’s request to withdraw.

        We take the underlying facts and procedural history in this matter

from the trial court’s June 19, 2014 opinion.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3502(a)(4).
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           A Criminal Complaint was filed on January 31, 2013[,]
     charging [Appellant] with 18 Pa.C.S.A. [§] 3502(a)(4)
     [b]urglary. The events that led to this charge began on January
     30, 2013[,] a little before 10:00 p.m. that evening. Officer
     Mathew Hungerford was in the area of the Ogontz Shopping
     Center in Cheltenham Township, Montgomery County looking for
     a subject related to a separate incident at a Walgreens. While
     driving through the complex near the Walgreens, Officer
     Hungerford heard an alarm.

            Officer Hungerford determined the alarm was coming from
     the Midas Store, located at 8141 Ogontz Avenue, which was
     across the street from where he was situated at the time. He
     saw [Appellant] and a female, Simone Bivens walking
     approximately 50 feet away from the Midas Store and headed
     toward the Shop-Rite parking lot. He then observed [Appellant]
     turn and look at his patrol vehicle[,] which was headed in their
     direction. [Appellant] was holding a black box by the handle in
     his right hand, but tucked it up under his right arm and began to
     walk faster after making eye contact with Officer Hungerford.

            Officer Hungerford pulled up to the Midas Store, which
     was closed at the time, before he decided to investigate
     [Appellant] and Bivens any further. He saw that the front door
     of the Midas Store had been completely smashed.           More
     specifically, the glass was completely spidered but remained
     connected to the door because there was a plastic coating that
     prevented the glass from falling to the ground. Thereafter,
     Officer Hungerford pulled his vehicle to the rear of the Midas
     Store[,] which put him in the Shop-Rite parking lot. He then
     pulled up near [Appellant] and Bivens and ordered them to stop
     so he could investigate the potential burglary.

           [Appellant] initially did not comply with Officer
     Hungerford’s order to show him his hands. After ordering him
     once more, [Appellant] produced a large metal wrench by raising
     it over his head with his right hand. Officer Hungerford asked
     him twice to drop the wrench, and he complied on the third
     request by throwing it to the ground. The officer then placed
     [Appellant] against the patrol vehicle and handcuffed him.

           The Midas Store manager, Brian Beers[,] arrived and
     escorted the police officers into the store to assess the damages.
     Beers noticed that the cash drawer was on the ground and

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       emptied. Additionally, he noticed that the store’s black petty-
       cash box was missing. Sergeant Joseph O’Neill observed the
       cash box on the ground of the parking lot between the Midas
       Store and the area where Officer Hungerford stopped
       [Appellant]. [Appellant] was ultimately arrested and transported
       to the police station. His clothing was taken into evidence to
       preserve the pieces of glass that were located on his jacket and
       boots. Moreover, it was determined that [Appellant’s] burglary
       resulted in the theft of $197.47 from the Midas Store.

              A two-day jury trial began on October 15, 2013[,] and
       [Appellant] was found guilty of [b]urglary. Thereafter, [the trial]
       court imposed a sentence of [not less than] three [nor more
       than] eight years[’ incarceration] on January 9, 2014. A [p]ost-
       [s]entence [m]otion was filed, asking [the trial] court for a new
       trial or reconsideration of [Appellant’s] sentence. [The trial
       court] denied said [m]otion by an [o]rder dated March [27],
       2014. The instant [n]otice of [a]ppeal was filed on April 8, 2014,
       which prompted [the trial] court to direct [Appellant] to produce
       a statement of issues in conformance with Pennsylvania Rule of
       Appellate Procedure 1925(b) [on April 16, 2014]. [Appellant]
       complied with that directive [on April 18, 2014].

(Trial Court Opinion, 6/19/14, at 1-3) (footnotes, record citations, and

quotation marks omitted).2


____________________________________________


2
   On July 14, 2014, this Court ordered Appellant to show cause as to why we
should not dismiss this appeal as untimely. (See Order, 7/14/14, at
unnumbered page 1). We opined that Appellant’s post-sentence motions,
filed on January 22, 2014, were untimely. (See id.). On July 25, 2014, we
received a letter from the trial court explaining that the post-sentence
motions were due on January 19, 2014, which was a Sunday, and that
Monday, January 20, was a legal holiday.            (See Letter, 7/25/14, at
unnumbered page 1). The trial court further stated that the court closed
early on Tuesday, January 21, 2014 due to inclement weather. (See id.).
Therefore, the trial court informed trial counsel that it would allow her to file
the post-sentence motions at the first available opportunity on Wednesday,
January 22, 2014. (See id.). Thus, we find that Appellant did timely file his
post-sentence motions.



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      On appeal, Appellant raises the following questions for our review:

            Is there legally sufficient evidence to support Appellant’s
      conviction for the offence of burglary?

            Did the trial court abuse its discretion when it denied
      Appellant’s motion for a new trial on the basis that the guilty
      verdict was against the weight of the evidence?

            Did the trial court abuse its discretion when it imposed a
      sentence of three (3) to eight (8) years in prison with respect to
      Appellant’s burglary conviction?

(Anders Brief, at 6).

      Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

appeal on the basis that the appeal is frivolous 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, supra at 361. When we receive an Anders brief, we first rule on

the petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).

In addition, “[p]art and parcel of Anders is our Court’s duty to review the




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record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

      In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, he has petitioned this

Court to withdraw because “[t]here were no non-frivolous issues to be

addressed[.]”   (Petition for Withdraw as Counsel, 9/03/14, at unnumbered

page 3). In addition, after his review of the record, counsel filed a brief with

this Court that provides a summary of the procedural history and facts with

citations to the record, refers to any facts or legal theories that arguably

support the appeal, and explains why he believes the appeal is frivolous.

(See Anders Brief, at 7-40). Lastly, he has attached, as an exhibit to his

petition to withdraw, a copy of the letter sent to Appellant giving notice of

his rights, and including a copy of the Anders brief and the petition. See

Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005).

Appellant filed a response on November 3, 2014, wherein he argued that

counsel misstated the record and highlighted certain alleged inconsistencies

in the trial testimony. (See Amended Brief to Support Argument, 11/03/14,

at unnumbered pages 1-2).          However, Appellant does not raise any

additional issues in his filing. (See id.). Because counsel has substantially

complied with the dictates of Anders, Santiago, and Millisock, we will

examine the issue set forth in the Anders brief that counsel believes has

arguable merit. See Garang, supra at 240-41.


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      In its first claim, the Anders brief alleges that the evidence was

insufficient to sustain his conviction for burglary because, “there is no direct

evidence linking him to the break in at the Midas Shop. . .” (Anders Brief,

at 19). Our standard of review for sufficiency of the evidence claims is well

settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed
      in a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to
      find every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations

omitted) (emphasis added).

            A person commits the offense of burglary if, with the intent
      to commit a crime therein, the person: . . . enters a building or
      occupied structure, or separately secured or occupied portion
      thereof that is not adapted for overnight accommodations in
      which at the time of the offense no person is present.

18 Pa.C.S.A. § 3502(a)(4).     The learned trial court succinctly summarized

the evidence against Appellant as follows:




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            Viewing the evidence in the light most favorable to the
     Commonwealth, the jury was able to determine [Appellant’s]
     guilt was established beyond a reasonable doubt. The testimony
     of Officer Hungerford and Sergeant O’Neill established that on
     January 30, 2013 a little before 10:00 p.m., the Midas Store
     alarm was going off and the glass of the front door was
     smashed, indicating a break-in had just occurred.         A later
     investigation by the police, with the help of store manager, Brian
     Beers, revealed that the cash drawer was pulled out and
     emptied, and a black petty-cash box was missing.

           The record reflects that within moments after he noticed
     the alarm going off, Officer Hungerford saw a male and a female
     walking approximately 50 feet in front of the Midas Store,
     headed toward Shop-Rite. He saw that the male, identified as
     [Appellant], was carrying a black box that was later discovered
     to be the petty-cash box missing from the Midas Store. To
     further corroborate Officer Hungerford’s observations, a loss
     prevention officer from Shop-Rite, George Hamilton[,] also
     witnessed a male he identified as [Appellant] walking in the
     parking lot with a female. Additionally, Hamilton saw [Appellant]
     drop a black box after he realized that Officer Hungerford’s
     vehicle was following him.

           The testimony of the witnesses also established that
     immediately after being stopped in the parking lot by Officer
     Hungerford, [Appellant] was in possession of a burglary tool or a
     large metal wrench; there were glass particles found on
     [Appellant’s] jacket and boots; a wad of cash was removed from
     his pocket; and the theft committed by [Appellant] was of
     $197.47. Finally, Brian Beers testified that the Midas Store was
     in fact closed for business on January 30, 2013 a little before
     10:00 p.m. and [Appellant] did not have permission to be in the
     store at that time.

           The record therefore reflects that in the light most
     favorable to the Commonwealth, the jury fairly concluded that
     the Defendant burglarized the Midas Store[.]

(Trial Ct. Op., 6/19/14, at 7-8). This evidence was more than sufficient to

sustain Appellant’s conviction for burglary.     See Commonwealth v.

Carothers, 675 A.2d 734, 735-37 (Pa. Super. 1996) (evidence sufficient to

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sustain conviction for burglary where police saw defendant at rear of

building, defendant fled upon seeing police, and police discovered discarded

burglary tool and cash along his flight route). Appellant’s first claim lacks

merit.

       In its second issue, the Anders brief challenges the weight of

evidence, alleging “that the testimony of the Commonwealth’s witnesses was

so contradictory as to render it not worthy of belief.” (See Anders Brief, at

26).

       Our scope and standard of review of a weight of the evidence claim is

as follows:

             The finder of fact is the exclusive judge of the weight of
       the evidence as the fact finder is free to believe all, part, or none
       of the evidence presented and determines the credibility of the
       witnesses.

              As an appellate court, we cannot substitute our judgment
       for that of the finder of fact. Therefore, we will reverse a jury’s
       verdict and grant a new trial only where the verdict is so
       contrary to the evidence as to shock one’s sense of justice. A
       verdict is said to be contrary to the evidence such that it shocks
       one’s sense of justice when the figure of Justice totters on her
       pedestal, or when the jury’s verdict, at the time of its rendition,
       causes the trial judge to lose his breath, temporarily, and causes
       him to almost fall from the bench, then it is truly shocking to the
       judicial conscience.

             Furthermore, where the trial court has ruled on the weight
       claim below, an appellate court’s role is not to consider the
       underlying question of whether the verdict is against the weight
       of the evidence. Rather, appellate review is limited to whether
       the trial court palpably abused its discretion in ruling on the
       weight claim.




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Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and internal quotation marks omitted).              “Thus, the trial

court’s denial of a motion for a new trial based on a weight of the evidence

claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation

omitted).

       In its Rule 1925(a) opinion, the trial court explained why it rejected

Appellant’s weight of the evidence claim.          (See Trial Ct. Op., at 8-10).

Further, the record reflects that the jury chose to credit the testimony of the

six Commonwealth witnesses who observed Appellant on the night of the

robbery, and chose to reject the defense’s theory of the case.             This Court

cannot substitute our judgment for that of the trier of fact.                    See

Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super. 2008), appeal

denied, 959 A.2d 928 (Pa. 2008). Further, the jury, sitting as finder of fact,

was free to believe the Commonwealth’s witnesses and to disbelieve the

defense witnesses. See Commonwealth v. Griscavage, 517 A.2d 1256,

1259    (Pa.   1986).   “[I]t   is   for   the   fact-finder   to   make   credibility

determinations, and the finder of fact may believe all, part, or none of a

witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.

Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted).




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       Thus, after a thorough review of both the trial court’s opinion and the

record in this matter and we conclude that the trial court did not commit a

palpable abuse of discretion in rejecting Appellant’s claim.                Therefore,

Appellant’s weight of the evidence claim fails.

       In its final issue, the Anders brief challenges the discretionary aspects

of Appellant’s sentence.3 The right to appeal the discretionary aspects of a

sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d 270,

274 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an

appellant challenges the discretionary aspects of the sentence imposed, he

must present “a substantial question as to the appropriateness of the

sentence[.]”     Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa.

Super. 2003) (citations omitted).               An    appellant   must,   pursuant   to

Pennsylvania Rule of Appellate Procedure 2119(f), articulate “a colorable

argument that the sentence violates a particular provision of the Sentencing

Code or is contrary to the fundamental norms underlying the sentencing

scheme.”      Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa.

Super. 2005) (en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation

omitted).       If   an   appellant’s    Rule      2119(f)   statement    meets   these
____________________________________________


3
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing timely post-sentence motions for reconsideration of sentence.
(See Post-Sentence Motions, 1/22/14, at unnumbered page 7); see also
McAfee, infra at 275.




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prerequisites, we determine whether a substantial question exists.            See

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000), appeal

denied, 759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons

for which the appeal is sought, in contrast to the facts underlying the

appeal, which are necessary only to decide the appeal on the merits.” Id.

(emphases in original).

       Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Anders Brief, at 18). Appellant claims that the trial court improperly

used his criminal history to bolster his sentence, even though it was already

accounted for in his prior record score.       (See id.).   However, in his Rule

2119(f) statement, Appellant concedes that his sentence was in the standard

range of the Sentencing Guidelines. (See id.). Appellant also acknowledges

that the trial court had the benefit of a pre-sentence investigation report

(PSI), and that “where the sentencing court has the benefit of a PSI report,

the law presumes that the court was aware of the relevant information

regarding [Appellant’s] character and weighed those considerations, along

with   the   mitigating   statutory   factors.”     (Id.    at   37);   see   also

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

       A claim that a sentencing court improperly relied on his criminal

history raises a substantial question.     See Commonwealth v. Shugars,

895 A.2d 1270, 1274 (Pa. Super. 2006) (claim that sentencing court based




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sentence on defendant’s prior convictions raises substantial question). Our

review of the record in this matter demonstrates that this claim is meritless.

      In fashioning the sentence, the sentencing court specifically stated

that it considered the presentence report, the guidelines, and the nature and

circumstances of the offense.       (See N.T. Sentencing Hearing, 1/09/14, at

16-20). The court expressed its concern about Appellant’s over thirty-year

criminal history, which included twenty-five juvenile arrests, resulting in ten

adjudications,   and   fifty-five   adult   arrests,   resulting   in   twenty-three

convictions, for substantially similar theft-type offenses.        (See id. at 17).

The trial court, in discussing Appellant’s criminal history properly noted that

the then approximately forty-one-year-old Appellant had lived a life of crime

since the age of twelve. (See id. at 16). The court noted the many risks

factors in Appellant’s development, Appellant’s history of committing

offenses, including the current offense while under supervision, and the

danger he presented to the community.           (See id. at 16-18).       Therefore,

Appellant’s claim is meritless.

      Appellant’s issues do not merit relief.            Further, this Court has

conducted an independent review of the record as required by Anders and

Santiago and finds that no non-frivolous issues exist.

      Judgment of sentence affirmed.            Petition to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2014




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