J-S10023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GUILLERMO R. ENCISO,

                            Appellant                No. 1878 EDA 2015


      Appeal from the Judgment of Sentence Entered November 21, 2014
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0003896-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 10, 2016

        Appellant, Guillermo R. Enciso, appeals nunc pro tunc from the

November 21, 2014 judgment of sentence of 11½ to 23 months’

incarceration, imposed after a jury convicted him of carrying a firearm

without a license, 18 Pa.C.S. § 6106(a)(1).         Appellant challenges the

sufficiency of the evidence to sustain his conviction, and also asserts that

the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by

not turning over certain exculpatory evidence to the defense. Additionally,

Appellant’s counsel, Maria Heller, Esq., seeks to withdraw her 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

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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review, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

      On October 5, 2013, Appellant was arrested and charged with various

offenses, including attempted homicide, conspiracy to commit homicide,

carrying a firearm without a license, possessing an instrument of crime

(PIC), and recklessly endangering another person (REAP).             Appellant’s

charges stemmed from his involvement in a gang-related altercation among

a large group of men, which culminated in the stabbing of the victim, Javier

Bedolla. While the Commonwealth did not present evidence that Appellant

had stabbed the victim, several witnesses testified that Appellant was

involved in the physical fight, and at one point he fired a gun into the air.

      Appellant proceeded to a jury trial in August of 2014, on numerous

charges, including those stated supra. At trial,

      Appellant’s … defense was that [he] and his group were
      surrounded and that [he] fired the gun in the air to stop the
      violence. Furthering this strategy[,] at the conclusion of trial,
      Appellant’s attorney agreed with the court that a self-defense
      and defense of others jury instruction was appropriate.

Anders Brief at 9 (citation to the record omitted). At the close of trial, the

jury acquitted Appellant of all charges except PIC, REAP, and carrying a

firearm without a license. Appellant filed a motion for judgment of acquittal

on August 29, 2014, which the trial court granted with respect to Appellant’s

PIC and REAP charges. Therefore, his only remaining conviction was for the

firearm offense.



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      Appellant proceeded to a sentencing hearing on November 21, 2014.

Before the court imposed Appellant’s sentence,

      there was a discussion on the record regarding information that
      should have been disclosed by the prosecution. Specifically, the
      [Commonwealth] had not disclosed to the defense that the first
      officer on the scene of the crime had seen the victim surrounded
      by numerous Hispanic shirtless men with tattoos.               This
      information was deemed relevant since the defense’s theory of
      the case was self-defense [or defense of others].              The
      [Commonwealth] disclosed the information to … Appellant’s
      attorney, and to the court after the jury returned its verdict, but
      before the court sentenced Appellant.

             Appellant’s attorney placed on the record [at the
      November 21, 2014 sentencing hearing] that he had discussed
      the lack of disclosure and the implications of prosecutorial
      misconduct with Appellant. Appellant’s attorney stated that in
      lieu of pursuing the prosecutorial misconduct issue by way of an
      evidentiary hearing, Appellant had decided to waive this right
      and agreed to a reduced negotiated sentence on the remaining
      charge [of carrying a firearm without a license].

            Due to Appellant’s prior record score, the Pennsylvania
      Sentencing Guidelines suggested a standard guideline range of
      forty-eight (48) to sixty (60) months[’ incarceration] on the
      remaining [firearm] charge…. The firearm charge … [carries] a
      statute maximum sentence of forty-two (42) to eighty-four (84)
      months’ confinement.     Appellant’s guideline sentence range,
      therefore, exceeded the statutory maximum.

            Due to the [Commonwealth’s] non-disclosure, [it] offered
      Appellant a negotiated sentence in exchange for not pursuing
      the prosecutorial misconduct issue. Pursuant to the parties’
      agreement, Appellant was sentenced on November 21, 2014[,]
      to eleven and a half (11½) … to twenty-three (23) months’
      confinement for the charge of [carrying a firearm without a
      license,] with credit for time served….

Anders Brief at 3-4 (citations to the record omitted).




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         Appellant did not file a notice of appeal.   However, he filed a timely

petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546, seeking the restoration of his appeal rights nunc pro tunc. The court

granted that petition and appointed Attorney Heller of the Chester County

Public Defender’s Office to represent Appellant. Attorney Heller filed a nunc

pro tunc notice of appeal on Appellant’s behalf.         The trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement and, in response, Attorney

Heller submitted a Rule 1925(c)(4) statement of her intent to file an Anders

brief.

         Attorney Heller filed a petition to withdraw in this Court on October 27,

2015, and thereafter submitted an Anders brief setting forth the following

two issues that Appellant seeks to raise on appeal:

         I. Should the [carrying a firearm without a license] … charge
         have been dismissed with prejudice due to prosecutorial
         misconduct?

         II. Was the evidence sufficient to prove the charge [of carrying a
         firearm without a license] … beyond a reasonable doubt?

Anders Brief at 2.

         “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.”       Commonwealth v. Goodwin, 928 A.2d

287, 290 (Pa. Super. 2007) (en banc) (citation omitted).

         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:


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         (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, 879-880 (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 Heller’s Anders brief complies with the above-

stated requirements.    Namely, she includes a summary of the relevant

factual and procedural history, she refers to portions of the record that could

arguably support Appellant’s claims, and she sets forth her conclusion that

Appellant’s appeal is frivolous. She also explains her reasons for reaching



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that determination, and supports her rationale with citations to the record

and pertinent legal authority. Attorney Heller also states in her petition to

withdraw that she has supplied Appellant with a copy of her Anders brief,

and she has attached a letter directed to Appellant in which she informs him

of the rights enumerated in Nischan.1            Accordingly, counsel has complied

with the technical requirements for withdrawal. We will now 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.

       Appellant first seeks to argue that the Commonwealth committed a

Brady violation by not disclosing that the first responding officer had

witnessed “the victim on the ground surrounded by numerous Hispanic[,]

shirtless men with tattoos.”          Anders Brief at 10.     Attorney Heller first

concludes that this claim is frivolous because Appellant waived his right to

assert this Brady issue at the November 21, 2014 sentencing hearing. Id.

at 16-17. Alternatively, Attorney Heller notes that Appellant would not be

able to prove that the Commonwealth committed a Brady violation, even if

he had not waived this claim.           Because, for the reasons stated infra, we

agree with Attorney Heller that Appellant’s Brady claim is frivolous, we need

not consider whether he waived this issue for our review.

____________________________________________


1
 Appellant has not filed a response to counsel’s petition to withdraw or
Anders brief.



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      Our Supreme Court has stated that,

      in order to establish a Brady violation, a defendant must show
      that: (1) evidence was suppressed by the state, either willfully
      or inadvertently; (2) the evidence was favorable to the
      defendant, either because it was exculpatory or because it could
      have been used for impeachment; and (3) the evidence was
      material, in that its omission resulted in prejudice to the
      defendant. See Commonwealth v. Lambert, 584 Pa. 461,
      471, 884 A.2d 848, 854 (2005); Commonwealth v. Collins,
      585 Pa. 45, 68, 888 A.2d 564, 577–78 (2005). However, “[t]he
      mere possibility that an item of undisclosed information might
      have helped the defense, or might have affected the outcome of
      the trial, does not establish materiality in the constitutional
      sense.” Commonwealth v. Chambers, 570 Pa. 3, 29, 807 A.2d
      872, 887 (2002) (citation omitted and emphasis added). Rather,
      evidence is material “only if there is a reasonable probability
      that, had the evidence been disclosed to the defense, the result
      of the proceeding would have been different. A reasonable
      probability is a probability sufficient to undermine confidence in
      the outcome.” Id. at 29, 807 A.2d at 887–88.

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (emphasis in

original; one internal citation omitted).

      Here, Attorney Heller concludes that the first two Brady prongs are

arguably met in this case, but reasons that Appellant cannot demonstrate

that the withheld evidence would have changed the outcome of his case.

We agree. Certainly, the withheld evidence supports Appellant’s claim that

he acted in self-defense, or in defense of others.     However, the officer’s

testimony that he saw the victim on the ground surrounded by other men

has absolutely no bearing on whether Appellant was carrying a firearm

without a license.    Accordingly, Appellant cannot demonstrate that this

evidence would have changed the outcome of the proceedings, where the



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only conviction that resulted therefrom was for the offense of carrying a

firearm without a license. Accordingly, we agree with Attorney Heller that

Appellant’s Brady claim is frivolous.

      Next, Appellant challenges the sufficiency of the evidence to sustain

his conviction. Our standard of review of a challenge to the sufficiency of

the evidence is as follows:

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      The offense of carrying a firearm without a license is defined as

follows:

      (a) Offense defined.--

           (1) Except as provided in paragraph (2), any person who
           carries a firearm in any vehicle or any person who carries a
           firearm concealed on or about his person, except in his
           place of abode or fixed place of business, without a valid
           and lawfully issued license under this chapter commits a
           felony of the third degree.

18 Pa.C.S. § 6106(a)(1).

      Initially, we note that Appellant stipulated at trial that he did not have

a license to carry a concealed firearm. N.T. Trial, 8/21/14, at 419-20. He


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contends, however, that because the gun was never recovered in this case,

the evidence was insufficient to prove that he possessed a firearm to support

his conviction for carrying a firearm without a license.

      We    disagree.      Primarily,     it   is   well-established   that   “[t]he

Commonwealth may sustain its burden of proof by means of wholly

circumstantial evidence, and the jury, in passing upon the weight and

credibility of each witness’s testimony, is free to believe all, part, or none of

the evidence.” Commonwealth v. Arrington, 86 A.3d 831, 840 (Pa. 2014)

(citation omitted).     As Attorney Heller points out, in Arrington, our

Supreme Court “found sufficient evidence of unlawful possession of a firearm

based on purely circumstantial evidence.”           Anders Brief at 23; see also

Arrington, 86 A.3d at 840-41.           Additionally, Attorney Heller directs our

attention to this Court’s decision in Commonwealth v. Antidormi, 84 A.3d

736, 757 (Pa. Super. 2014), where we held that a witness’ testimony alone

was sufficient to prove possession of a firearm under 18 Pa.C.S. §

6105(a)(1) (Persons not to possess a firearm).           While this case does not

involve precisely the same firearm offense as in Antidormi, both sections

6105 and 6106 require that the Commonwealth prove the defendant

possessed a firearm. If a witness’ testimony, alone, was sufficient to meet

this burden under section 6105, the same is sufficient under section 6106.

      With these standards in mind, it is obvious that the circumstantial

evidence was more than sufficient to demonstrate that Appellant possessed

a firearm, despite that the weapon was never recovered. Multiple witnesses

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(including two individuals called by the defense) testified that they saw

Appellant pull a firearm and shoot it during the altercation. See N.T. Trial,

8/20/14, at 206 (Commonwealth witness Angel Duran testifying that

Appellant “pulled out the gun and shot maybe two or three times[,]” after

which Appellant “pointed the gun at [Duran]”); id. at 318 (Commonwealth

witness Javier Bedolla’s stating that Appellant “pulled the gun” and shot it);

N.T. Trial, 8/21/14, at 521 (defense witness (and Appellant’s brother)

Hubanal Renteria, confirming that he saw Appellant pull a gun from his

waistband and shoot it); id. at 558-59 (defense witness Manuel Duran

stating that Appellant fired a shot into the ground). Based on the testimony

of these witnesses, the Commonwealth satisfied its burden of proving that

Appellant possessed a firearm to sustain his conviction under section

6106(a)(1).

      In sum, we agree with Attorney Heller that Appellant’s two issues are

frivolous. Additionally, we have independently reviewed the record and find

no other issues of arguable merit that he could pursue on appeal.

Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

      Judgment of sentence affirmed.         Petition to withdraw granted.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2016




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