J-S19001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                         Appellee

                    v.

MATTHEW BALDWIN,

                         Appellant                       No. 319 EDA 2015


     Appeal from the Judgment of Sentence Entered January 23, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010832-2013


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED MARCH 23, 2016

      Appellant, Matthew Baldwin, appeals from the judgment of sentence of

50 years’ to life imprisonment, imposed after he was convicted of first-

degree murder (18 Pa.C.S. § 2502(a)), carrying a firearm without a license

(18 Pa.C.S. § 6106), carrying a firearm on a public street in Philadelphia (18

Pa.C.S. § 6108), and possessing an instrument of crime (PIC) (18 Pa.C.S. §

907). Appellant seeks to raise several claims, including a challenge to the

sufficiency of the evidence to sustain his convictions.               Additionally,

Appellant’s   counsel,   James      E.   Lee,   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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       Following a jury trial in November of 2014, Appellant was convicted of

the above-stated offenses based on the shooting death of Kharee Tillmon.

Appellant was 17 years old at the time he shot and killed Tillmon.         On

January 23, 2015, the court sentenced Appellant to a term of 50 years’ to

life imprisonment for his first-degree murder conviction;1 2 to 7 years’

incarceration for carrying a firearm without a license; 9 months’ to 5 years’

incarceration for carrying a firearm in public in Philadelphia; and 1 month to

5 years’ incarceration for PIC. The court imposed Appellant’s sentences to

run concurrently, resulting in an aggregate term of 50 years’ to life

imprisonment.       Appellant did not file post-sentence motions.   He filed a

timely notice of appeal on January 28, 2015.

       During Appellant’s trial, sentencing, and the filing of his notice of

appeal, Appellant was represented by Brian J. McMonagle, Esq. On February

11, 2015, Attorney McMonagle filed with this Court a “Motion to Withdraw as

Counsel or to Remand to Trial Court for Appointment of Counsel on Appeal.”

On March 6, 2015, this Court issued a per curiam order granting Attorney

McMonagle’s motion and remanding Appellant’s case to the trial court for a

____________________________________________


1
  Appellant’s first-degree murder sentence was imposed pursuant to 18
Pa.C.S. § 1102.1(a)(1) (“A person who has been convicted after June 24,
2012, of a murder of the first degree, … and who was under the age of 18 at
the time of the commission of the offense shall be sentenced as follows: (1)
A person who at the time of the offense was 15 years of age or older shall
be sentenced to a term of life imprisonment without parole, or a term of
imprisonment, the minimum of which shall be 35 years to life.”).



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determination as to whether Appellant was entitled to court-appointed

representation on appeal.     On remand, the trial court determined that

Appellant was not entitled to court-appointed counsel. Appellant, however,

retained private counsel, Attorney Lee.

      On June 14, 2015, Attorney Lee timely complied with the court’s order

to file a Pa.R.A.P. 1925(b) concise statement, presenting the following four

claims:

      [(1)] The verdict goes against the weight of the evidence for all
      crimes.

      [(2)] The evidence was insufficient to sustain a conviction for all
      crimes.

      [(3)] Counsel for [Appellant] was ineffective.     (Pre-trial, trial
      phase and post-trial)

      [(4)] [Appellant’s] sentence should be modified as to the
      sentencing guideline ranges as to the Murder conviction. This
      sentence was based on speculative testimony not addressed by
      the jury in its verdict, and resulted in an excessive guide line
      [sic] range which the [c]ourt detrimentally relied upon.

Pa.R.A.P. 1925(b) Statement, 6/14/15.       On July 2, 2015, the trial court

issued a Rule 1925(a) opinion addressing these four claims.

      On October 29, 2015, Attorney Lee filed with this Court a petition to

withdraw from representing Appellant. He also filed an Anders brief,

asserting that Appellant’s issues are frivolous, and that there are no other

non-frivolous issues Appellant could raise on appeal.

      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).


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     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, 879-880 (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 Lee’s Anders brief substantially 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


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that could arguably support this appeal, 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.2 Attorney Lee also has supplied Appellant with a

copy of his Anders brief, and he sent a letter to Appellant informing him of

the rights enumerated in Nischan.3 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 claims he could pursue on

appeal.


____________________________________________


2
  We note, however, that Attorney Lee does not discuss the weight-of-the-
evidence issue that was presented in Appellant’s Rule 1925(b) statement.
Presumably, Attorney Lee omitted this issue because Attorney McMonagle
waived it by not raising it before the trial court. See Pa.R.Crim.P. 607(A)
(directing that claim that verdict was against weight of evidence must be
raised before the trial court orally or in a written motion prior to sentencing,
or in a post-sentence motion); Commonwealth v. Griffin, 65 A.3d 932,
938 (Pa. Super. 2013) (finding a weight of evidence claim waived where the
appellant failed to raise it in a pre-sentence motion, did not address the
issue orally prior to sentencing, and did not raise it in a post-sentence
motion). While Attorney Lee should have mentioned in his Anders brief that
Appellant’s weight-of-the-evidence claim was waived, his failure to do so is
not so egregious as to warrant our denial of his petition to withdraw.
3
  Attorney Lee initially failed to send a letter to Appellant informing him of
his right to retain another attorney, or to proceed pro se on appeal.
Accordingly, on November 25, 2015, this Court issued a per curiam order
directing Attorney Lee to send Appellant such a letter. On December 4,
2015, Attorney Lee complied with our order and filed a copy of the letter he
sent to Appellant addressing the rights set forth in Nischan.



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       Appellant’s first issue challenges the sufficiency of the evidence to

sustain his convictions.

             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).

       Preliminarily, the trial court concluded that Appellant’s sufficiency issue

was waived based on the boilerplate assertion of this claim in his Rule

1925(b) statement. See Trial Court Opinion (TCO), 7/2/15, at 3. Appellant

was convicted of four offenses, each of which contains various elements, yet

he failed to specify what offense(s) or element(s) the Commonwealth failed

to prove. Consequently, the trial court “was given no clue as to what claims

[Appellant] intends to raise on appeal regarding any of the charges of which

he was convicted.”       Id. at 3.    We agree with the court that, under these

circumstances, Appellant has waived his sufficiency-of-the-evidence issue for

our review.4 See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
____________________________________________


4
  We are aware that this Court has elected to assess the merits of otherwise
waived issues where counsel is seeking to withdraw on appeal. See
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(concluding that Anders requires review of issues otherwise waived on
(Footnote Continued Next Page)


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2009) (reiterating “that when challenging the sufficiency of the evidence on

appeal, the [a]ppellant’s [Rule] 1925 statement must ‘specify the element or

elements upon which the evidence was insufficient’ in order to preserve the
                       _______________________
(Footnote Continued)

appeal); Commonwealth v. Baney, 860 A .2d 127, 130 (Pa. Super. 2004)
(same). However, Hernandez and Baney (which relies on Hernandez)
both pre-date our Supreme Court's 2007 amendment of Rule 1925, which
added section (c)(4). That provision states:

      (4) In a criminal case, counsel may file of record and serve on
      the judge a statement of intent to file an Anders/McClendon
      brief in lieu of filing a Statement. If, upon review of the
      Anders/McClendon brief, the appellate court believes that
      there are arguably meritorious issues for review, those issues
      will not be waived; instead, the appellate court may remand for
      the filing of a Statement, a supplemental opinion pursuant to
      Rule 1925(a), or both. Upon remand, the trial court may, but is
      not required to, replace appellant's counsel.

Pa.R.A.P. 1925(c)(4).

       Under Rule 1925(c)(4), counsel now has the option of submitting a
statement of intent to file an Anders brief rather than a Rule 1925(b)
statement raising specific issues. If, however, counsel chooses to file a Rule
1925(b) statement, we do not overlook the firmly established waiver
principles in assessing what issues are preserved, simply because counsel
later elects to file an Anders brief with this Court. See Commonwealth v.
Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (finding a sufficiency of the
evidence claim waived where it was not raised in the Rule 1925(b)
statement, even though the attorney who filed that inadequate Rule 1925(b)
statement was seeking to withdraw under Anders). Only where Anders
counsel fails to file any court-ordered statement under Rule 1925, thus
constituting per se ineffectiveness, is the appropriate remedy to deny
counsel's petition to withdraw and remand for counsel to file either a Rule
1925(b) or 1925(c)(4) statement. See Commonwealth v. McBride, 957
A.2d 752, 758 (Pa. Super. 2008) (holding that “absent the proper filing of
any [Rule 1925] statement of record by [Anders] counsel, this Court cannot
properly consider counsel's request to withdraw”) (emphasis added).




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issue for appeal”) (quoting Commonwealth v. Williams, 959 A.2d 1252,

1257 (Pa. Super. 2008) (citations omitted)).

         In any event, even if this claim had been properly preserved, we would

conclude that Appellant’s challenge to the sufficiency of the evidence is

frivolous.    “To obtain a first-degree murder conviction, the Commonwealth

must demonstrate that a human being was unlawfully killed, the defendant

perpetrated the killing, and the defendant acted with malice and a specific

intent to kill.” Commonwealth v. Sherwood, 982 A.2d 483, 491-92 (Pa.

2009). “[T]he Commonwealth can prove the specific intent to kill through

circumstantial evidence. The use of a deadly weapon on a vital part of the

victim's body may constitute circumstantial evidence of a specific intent to

kill.”    Commonwealth v. Drumheller, 808 A.2d 893, 908 (Pa. 2002)

(internal citations and quotation marks omitted).

         Here, the court summarized the evidence presented at Appellant’s trial

as follows:

               At trial, the Commonwealth presented the testimony of
         Philadelphia Police Detective Greg Singleton, Philadelphia Police
         Officers Gregory Yatcilla and David Marcellino, Delaware Chief
         Medical Examiner Dr. Gary Collins, Denzel Nelson, Cierra Sport,
         Roosevelt Moore, and Mikequetta Butler. [Appellant] did not
         present any testimony. Viewed in the light most favorable to the
         Commonwealth as the verdict winner, the evidence established
         the following.

               On September 10, 2012[,] at approximately 5:45 p.m.,
         Kharee Tillmon was with some friends at the Cecil B. Moore
         Recreation Center located at 22nd Street and Huntingdon Street.
         [Appellant] entered the playground and began talking with
         Tillmon and friends. Eventually, [Appellant] began arguing with
         Tillmon about $10 that Tillmon owed [Appellant]. [Appellant]

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      stated, “Man, you’ve been owing me my bread for the longest.
      Give me my bread.” When Tillmon stated he did not have
      [Appellant’s] money, [Appellant] drew a .22 caliber revolver,
      pointed it at Tillmon, and shot him once in the chest.
      [Appellant] then kicked Tillmon once in the head, after Tillmon
      had fallen to the ground, and [Appellant] left the scene.

           Tillmon suffered a single gunshot wound to the chest,
      which penetrated his heart and both of his lungs. Doctors
      pronounced Tillmon dead at approximately 6:11 p.m.

TCO at 1-2 (citations to the record and footnote omitted).      This evidence

was sufficient to permit the jury to conclude that Tillmon was unlawfully

killed, that Appellant was the perpetrator of that killing, and that Appellant

acted with malice and a specific intent to kill. Accordingly, we would deem

the evidence sufficient to support Appellant’s first-degree murder conviction.

      Likewise, the evidence also demonstrated that Appellant committed

the offenses of carrying a firearm without a license, and carrying a firearm in

public in Philadelphia. Those crimes are defined, respectively, 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).

      No person shall carry a firearm, rifle or shotgun at any time
      upon the public streets or upon any public property in a city of
      the first class unless:

         (1) such person is licensed to carry a firearm; or




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         (2) such person is exempt from licensing under section
         6106(b) of this title (relating to firearms not to be carried
         without a license).

18 Pa.C.S. § 6108.

      Here, based on the above-stated evidence, it is clear that Appellant

possessed a gun in a public location in Philadelphia.         Additionally, Denzel

Nelson told police that as Appellant and Tillmon argued, Appellant “pulled

the gun out and just shot [Tillmon,]” indicating that the weapon was

concealed on Appellant’s person prior to the shooting. N.T. Trial, 11/19/14,

at 142 (emphasis added). Appellant was only 17 years old at the time of the

shooting and, therefore, he was ineligible to obtain a license to carry a

concealed firearm.     See 18 Pa.C.S. § 6109(b) (“An individual who is 21

years of age or older may apply to a sheriff for a license to carry a firearm

concealed    on   or   about   his   person   or   in   a    vehicle   within   this

Commonwealth.”).       Accordingly, we would conclude that the evidence was

sufficient to support Appellant’s firearm offenses.         Additionally, we would

also deem the evidence sufficient to sustain Appellant’s conviction for PIC, as

he clearly possessed an instrument of crime with the intent to employ it

criminally. See 18 Pa.C.S. § 907.

      Therefore, even had Appellant’s sufficiency of the evidence claim been

properly preserved in his Rule 1925(b) statement, we would deem that issue

frivolous.

      Appellant next challenges the discretionary aspects of his sentence,

contending that the trial court erred by applying “an excessive guide line



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[sic] range” sentence.      Pa.R.A.P. 1925(b) Statement, 6/14/15.        Attorney

McMonagle failed to preserve this sentencing issue in a post-sentence

motion or orally at the sentencing proceeding.         See Commonwealth v.

Bromley, 862 A.2d 598 (Pa. Super. 2004) (“It is well settled that an

[a]ppellant’s challenge to the discretionary aspects of his sentence is waived

if the [a]ppellant has not filed a post-sentence motion challenging the

discretionary aspects with the sentencing court.”) (citing Commonwealth

v. Mann, 820 A.2d 788 (Pa. Super. 2003) (stating that issues challenging

the discretionary aspects of sentence must be raised in post-sentence

motion or by raising claim during sentencing proceedings; absent such

initiative, objection to the discretionary aspects of sentence waived on

appeal)).        Accordingly, we agree with Attorney Lee that Appellant’s

sentencing claim is frivolous.

      Finally, Appellant argues that his trial counsel, Attorney McMonagle,

acted ineffectively in representing him. In Commonwealth v. Holmes, 79

A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior holding in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain

circumstances, claims of ineffective assistance of counsel should be deferred

until collateral review under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.     §§   9541-9546.      Holmes,   79   A.3d   at   576.   The    specific

circumstances under which ineffectiveness claims may be addressed on

direct appeal are not present in Appellant’s case. See id. at 577-78 (holding

that the trial court may address claim(s) of ineffectiveness where they are

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“both meritorious and apparent from the record so that immediate

consideration and relief is warranted,” or where the appellant’s request for

review of “prolix” ineffectiveness claims is “accompanied by a knowing,

voluntary, and express waiver of PCRA review”).             Notably, Appellant

presented his claim of ineffectiveness for the first time in his Rule 1925(b)

statement, and did not specify how Attorney McMonagle’s representation

was deficient. Accordingly, it is frivolous for Appellant to assert his vague

and boilerplate claim(s) of counsel’s ineffectiveness in this direct appeal.

       In sum, we agree with Attorney Lee that Appellant’s claims are either

waived and/or frivolous. Additionally, our independent review of the record

reveals no other non-frivolous claims that Appellant could assert on appeal.

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

Lee’s petition to withdraw.5

       Judgment of sentence affirmed. Petition to withdraw granted.




____________________________________________


5
  We acknowledge that it is troubling to permit Attorney Lee to withdraw
where he is the counsel who waived Appellant’s sufficiency claim by filing an
inadequate Rule 1925(b) statement. However, as our analysis infra reveals,
we would have deemed that claim frivolous even if properly preserved.
Regarding the waiver of Appellant’s weight-of-the-evidence and discretionary
aspects of sentencing issues, Appellant may seek relief by filing a timely
PCRA petition alleging that Attorney McMonagle acted ineffectively by not
preserving these claims for our review.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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