J-S48025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT
                                                             OF PENNSYLVANIA
                             Appellee

                        v.

    JOHNNY T. BRANFORD

                             Appellant                        No. 2018 MDA 2016


       Appeal from the Judgment of Sentence Entered November 2, 2016
                 In the Court of Common Pleas of Berks County
               Criminal Division at No: CP-06-CR-0002592-2015


BEFORE: OTT, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED: DECEMBER 31, 2018

        Appellant Johnny T. Branford (“Appellant”) appeals from the November

2, 2016 judgment of sentence entered in the Court of Common Pleas of Berks

County (“trial court”), following his jury convictions of two counts of first-

degree murder, two counts of third-degree murder, theft by unlawful taking,

access    device    fraud,   possessing        instruments    of    crime   (“PIC”),   and

unauthorized use of an automobile.1 Appellant’s counsel has filed a petition

to withdraw, alleging that this appeal is wholly frivolous, and filed a brief

pursuant     to    Anders     v.    California,     386      U.S.    738    (1967),    and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

affirm the judgment of sentence and grant counsel’s petition to withdraw.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(a), 2502(c), 3921(a), 4106(a)(1)(ii), 907(a), and
3928(a), respectively.
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        On January 26, 2015, a neighbor heard screams emanating from the

Reading residence of Mary Branford (“Mary”), who was seventy-four years old,

and her son Johnny M. Branford (“Johnny”). N.T. Trial, 9/26-30/16, at 102,

131-32, 275. Someone, in what sounded like Johnny’s voice, exclaimed six

or seven times, “[N]o stop, why are you doing this.”               Id. at 131-32.

Subsequently, the police were called and Officer Christopher Baker performed

a security check at the residence. Id. Officer Baker knocked on the front

door and received no response. Id. at 135-37. He was unable to see inside

the residence because the windows were covered with black trash bags. Id.

        A few days later, Mary’s other son, Joey Branford (“Joey”), was alerted

of his brother Johnny’s absence from work.2 Id. at 161-63, 278. Following

his unsuccessful efforts to contact his mother and brother by telephone and

through other family members, Joey called the police to perform a “welfare

check.” Id. at 278-79.

        Eventually, Sergeant Wayne Levey and Officer Christopher Gaughen of

the Reading Police Department, accessed the residence through a rear

basement door. Id. at 170-71. Once inside, Officer Gaughen was able to

peer into the first floor of the residence from the door leading from the

basement to the kitchen, where he observed someone’s leg on the ground.

Id. at 174. Based upon Officer Gaughen’s observation, the officers decided

to enter the home.        Id. at 174, 186.       Inside the residence, the officers

____________________________________________


2   Appellant is Johnny’s son and Mary’s grandson.

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J-S48025-17



discovered the deceased bodies of Mary and Johnny lying on the floor with

blue liquid (laundry detergent) on them. Id. at 174. Specifically, the mouths

and hands of both bodies were covered in liquid laundry detergent. Id. at

178, 191, 455-56. Although there were no signs of a forced entry, there were

obvious signs that a struggle had taken place. Id. at 177, 189.

     An autopsy later revealed that Mary died as a result of asphyxia caused

by neck compression. Id. at 472. A forensic pathologist who examined Mary’s

body reached this conclusion based upon the presence of petechial

hemorrhages on her face, eyes, mouth, and larynx as well as scleral

hemorrhages in both eyes. Id. The time of her death was consistent with

January 26, 2015, when the neighbor heard screams coming from the

residence. Id. at 478.

     Johnny was killed as a result of multiple stab wounds. Id. at 479. The

pathologist noted that Johnny’s body revealed the presence of twenty stab

and ten incised wounds. Id. Of those wounds, five were fatal and included a

wound under the left ear which transected the jugular vein in addition to

wounds penetrating his heart, lungs, pancreas and spleen. Id. at 481-83.

Johnny succumbed to his injuries at the same time Mary died. Id. at 484.

     After the police released the crime scene, Joey entered the residence to

collect important papers and items.   Id. at 291. Joey noticed that Mary’s

wallet was missing from her purse, which he located in the living room. Id.

at 292. Joey also discovered that Mary’s rings were missing. Id. at 294. The

following day, Joey called banks to close out her accounts. Id. at 293. In the

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process, he learned of recent account activity, which he forwarded to the

police. Id.    The police eventually obtained Mary’s bank records and, as a

result, were able to obtain surveillance videos for a cash ATM withdrawal and

two purchases made using Mary’s bank cards in the days following the

murders.      Id. at 356, 58, 873-908.      The surveillance footage depicted

Appellant using Mary’s card and her PIN number. Specifically, in the early

morning hours of January 27, 2015, Appellant was recorded using Mary’s debit

card at a Sheetz in Muhlenberg Township, where he arrived in Johnny’s

Subaru. Id. at 361-62. Later on the same day, Appellant was recorded using

Mary’s card to make a purchase at Sneaker Villa. Id. at 363. On February 1,

2015, Appellant was captured on video using Mary’s debit card at an ATM

inside the Berkshire Mall. Id. at 365-66.

     On February 5, 2015, the police responded to a “burglary in progress”

at a row house in Allentown.    Id. at 327-28.     At the location, the police

apprehended a male who was on the rooftop attempting to flee. Id. at 328.

Although the male suspect provided false information to the police, he was

later identified as Appellant. Id. at 330-31. Mary’s debit card was discovered

on the ground outside of the row home and turned over to the police. Id. at

334-35.

     Following his arrest, Appellant agreed to speak to the police and denied

any involvement in the killing of Mary and Johnny. Appellant asserted that

Joey, his paternal uncle, gave him the bank cards and the keys to Johnny’s

Subaru. Id. at 371. Specifically, Appellant stated that Joey told him that he

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was going to purchase Johnny’s Subaru and directed him to drive the vehicle.

Id. at 518-19, 524-25, 563. Appellant also stated that Joey directed him to

use Mary’s cards so that Joey could pay her bills. Id. at 522-26, 561-63.

Appellant, however, conceded that Mary did not give him permission to use

her cards. Id. at 569. Likewise, he acknowledged that Johnny did not give

him permission to drive the Subaru. Id.

       Appellant also denied being in Mary and Johnny’s house in 2015. Id. at

557.   He claimed that, as a result of an argument and altercation around

Christmas Eve 2014, Johnny kicked him out of the house and obtained a

protection from abuse order. Id. 299-300, 557.

       Joey, on the other hand, stated that he did not manage Mary’s finances

because she handled her own affairs. Id. at 295. Joey stated that he did not

have Mary’s cards and that he did not know the PIN number to her debit card.

Id. at 295-96. Joey further stated that he never drove his brother’s Subaru

and never had a conversation with him about purchasing the vehicle. Id. at

296. Joey denied ever having given permission to Appellant to use Mary’s

cards or Johnny’s Subaru. Id. at 297. Finally, Joey stated that he did not

have a key to Mary’s residence. Id. at 292.

       The police took a buccal swab of Appellant and Joey. Id. at 371-72.

Eventually, Appellant’s DNA was found under Johnny’s fingernails and on the

black pants Mary was wearing when she was murdered. Id. at 420, 425. Joey

was excluded as a potential source of any of the DNA collected from the crime

scene. Id. at 424.

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       Appellant was charged with and convicted by a jury of two counts of

first-degree murder, two counts of third-degree murder, theft by unlawful

taking, access device fraud, PIC, and unauthorized use of an automobile. On

November 2, 2016, the trial court sentenced Appellant to life imprisonment

on each of the first degree murder convictions.3 Appellant did not file any

post-sentence motions. Instead, he timely appealed to this Court.

       Following Appellant’s counseled filing of a notice of appeal, on December

6, 2016, the trial court ordered him to file a Pa.R.A.P. 1925(b) statement

within twenty-one days.         Appellant failed to comply.   On May 19, 2017,

Appellant’s counsel, Jacob Gurwitz, filed in this Court an Anders brief. On

May 24, 2017, Attorney Gurwitz filed a petition to withdraw as counsel.

       On appeal, the Commonwealth correctly pointed out that at no point did

Attorney Gurwitz file a Rule 1925(b) statement in accordance with the trial

court’s December 6, 2016 order. In response, on August 1, 2017, a panel of

this Court issued a memorandum decision remanding this case to the trial

court with instruction to direct Appellant to file a Rule 1925(b) statement nunc

pro tunc.

       On August 14, 2017, the trial court issued an order directing Appellant

to file a Rule 1925(b) statement. On August 16, 2017, Attorney Gurwitz filed
____________________________________________


3For purposes of sentencing, the third degree murder convictions merged with
the first degree convictions. The trial court also imposed upon Appellant
concurrent sentences of five years’ imprisonment for theft by unlawful taking,
one to seven years’ imprisonment for access device fraud, one to five years’
imprisonment for PIC, and one to two years’ imprisonment for unauthorized
use of a motor vehicle.

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a Rule 1925(b) statement.          On August 28, 2017, the trial court permitted

Attorney Gurwitz to withdraw from the case. On the same day, the trial court

issued an order appointing John Fielding, Esquire, to represent Appellant on

direct appeal.     On August 29, 2017, the trial court issued another order

instructing Appellant to file a Rule 1925(b) statement.          Following the trial

court’s grant of two extensions, on December 14, 2017, instead of the court-

ordered Pa.R.A.P. 1925(b) statement, Attorney Fielding filed a statement of

intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).4 On January 2,

2018, the trial court issued a two-page Pa.R.A.P. 1925(a) opinion, concluding

that no meritorious issues exist for purposes of direct appeal.

        Attorney Fielding, however, failed to file an Anders brief consistent with

Rule 1925(c)(4) or an Application to Withdraw. Thus, on January 18, 2018,

we issued an order, directing Attorney Fielding to file an Application to

Withdraw and an Anders brief in this Court, or a Rule 1925(b) statement in

the trial court. Eventually, after we issued additional orders over the course

____________________________________________


4   Rule 1925(c)(4) provides:
        In a criminal case, counsel may file of record and serve on the
        judge a statement of intent to file an [Anders] brief in lieu of filing
        a Statement. If, upon review of the [Anders] 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).




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of several months,5 Attorney Fielding finally filed the instant Anders brief,

raising three issues for our review.

       [I.] Was the evidence adduced at trial insufficient to support the
       jury’s verdict?

       [II.] Was the verdict of the trial court below against the weight of
       the evidence?

       [III.] Should ineffective assistance of counsel be an issue raised
       at this point in the case?

Anders Brief at 5.

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

merits of the underlying issues without first examining counsel’s petition to

withdraw.     Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).        It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 1) petition the

court for leave to withdraw stating that, after making a conscientious

examination of the record, counsel has determined that the appeal would be

frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the



____________________________________________


5 To review in detail the tortured procedural history of this case, we direct the
reader’s attention to our March 27, 2018 memorandum remanding with
instructions for Attorney Fielding to comply with the minimum requirements
of Anders/Santiago, as well as our August 27, 2018 order remanding for a
hearing to determine whether Attorney Fielding had abandoned Appellant and
to take further action to protect Appellant’s right to appeal.

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court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

      Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention. Accordingly, we conclude that counsel has satisfied the

procedural requirements of Anders.

      We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:

      [I]n 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 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. Here, our review of counsel’s brief indicates that

he has complied with the briefing requirements of Santiago. We, therefore,

conclude   that   counsel   has   satisfied   the   minimum   requirements    of

Anders/Santiago.

      Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

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an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now turn to the merits

of Appellant’s appeal.

      In his first issue on appeal, Appellant challenges the sufficiency of the

evidence underlying his convictions.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014).

      The Crimes Code defines first-degree and third-degree murder as

follows:

            § 2502. Murder



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            (a) Murder of the first degree.—A criminal homicide
      constitutes murder of the first degree when it is committed by an
      intentional killing.

              .....

           (c) Murder of the third degree.—All other kinds of
      murder shall be murder of the third degree. Murder of the third
      degree is a felony of the first degree.

18 Pa.C.S.A. § 2502(a), (c).

      To find a defendant guilty of first-degree murder a jury must find
      that the Commonwealth has proven that he . . . unlawfully killed
      a human being and did so in an intentional, deliberate and
      premeditated manner. It is the element of a willful, premeditated
      and deliberate intent to kill that distinguishes first-degree murder
      from all other criminal homicide. Specific intent to kill may be
      inferred from the defendant’s use of a deadly weapon upon
      a vital part of the victim’s body. The mens rea required for
      first-degree murder, specific intent to kill, may be established
      solely from circumstantial evidence.

Commonwealth v. Schoff, 911 A.2d 147, 159-60 (Pa. Super. 2006)

(internal citations omitted) (emphasis added).

      A person may be convicted of third-degree murder where the
      murder is neither intentional nor committed during the
      perpetration of a felony, but contains the requisite malice
      aforethought. Malice consists of a wickedness of disposition,
      hardness of heart, cruelty, recklessness of consequences, and a
      mind regardless of social duty, although a particular person may
      not be intended to be injured.

Commonwealth v. Pigg, 571 A.2d 438, 441-42 (Pa. Super. 1990) (internal

quotations and citations omitted). “The elements of third-degree murder, as

developed by case law, are a killing done with legal malice but without specific

intent to kill required in first-degree murder. Malice is the essential element

of third[-]degree murder, and is the distinguishing factor between murder and



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manslaughter.” Commonwealth v. Cruz-Centeno, 668 A.2d 536, 539 (Pa.

Super. 1995) (citations omitted).

       We have stated that a person may be convicted of third-degree
       murder where the murder is neither intentional nor committed
       during the perpetration of a felony, but contains the requisite
       malice aforethought. . . . We have defined malice as a
       wickedness of disposition, hardness of heart, cruelty, recklessness
       of consequences, and a mind regardless of social duty, although
       a particular person may not be intended to be injured. In addition,
       malice may be inferred from the use of a deadly weapon
       upon a vital part of the body. Malice may also exist where the
       principal acts in gross deviation from the standard of reasonable
       care, failing to perceive that such actions might create a
       substantial and unjustifiable risk of death or serious bodily injury.

Commonwealth v. Yanoff, 690 A.2d 260, 264 (Pa. Super. 1997) (internal

citations and quotation marks omitted) (emphasis added).

       Instantly, our review of the record confirms that the evidence was

sufficient to enable the jury to find every element of first- and third- degree

murder beyond a reasonable doubt. Appellant’s claim that because of a PFA

he had not been to Mary and Johnny’s residence since Christmas Eve 2014

fails because his DNA was found nearly a month later at the crime scene under

Johnny’s fingernails and on the black pants Mary was wearing at the time of

her death.     Further, Appellant’s claim that Joey had murdered Mary and

Johnny was contradicted by DNA evidence, excluding Joey as a potential

suspect.6 The record establishes that Appellant acted with the specific intent

____________________________________________


6The trial court also was well within its authority to reject Appellant’s proffered
version of the facts. Antidormi, 84 A.3d at 756 (“the finder of fact while



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and malice in the killing of Mary and Johnny. As detailed above, Mary died as

a result of asphyxia caused by neck compression,7 and Johnny because of

thirty stab wounds, five of which were fatal, including a wound under the left

ear which transected the jugular vein and others penetrating his heart, lungs,

pancreas and spleen. See Commonwealth v. Nichols, 692 A.2d 181, 184-

85 (Pa. Super. 1997) (“[I]t is well settled that the use of a deadly weapon on

a vital part of the body is sufficient to establish a specific intent to kill. Clearly,

a specific intent to cause serious bodily injury can be inferred from the same

circumstances.”). Moreover, in the days following the murders, Appellant was

captured on film making an ATM cash withdrawal and purchases at two

different locations using Mary’s bank cards. In addition, Mary’s bank card was

discovered at the scene of a burglary where Appellant was arrested while

attempting to flee.        Thus, viewed in the light most favorable to the

Commonwealth as the verdict winner, the evidence adduced at trial was

sufficient to sustain, beyond a reasonable doubt, Appellant’s convictions for

first- and third- degree murders in connection with the killing of his

grandmother and father.



____________________________________________


passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.”).

7 It is settled that “evidence of death by strangulation can be sufficient to
establish the requisite intent for first-degree murder.” Commonwealth v.
Martin, 101 A.3d 706, 718–19 (Pa. 2014), citing Commonwealth v. Pruitt,
951 A.2d 307, 318–19 (Pa. 2008).

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      We next review the sufficiency of the evidence with respect to the non-

homicide charges. To sustain a conviction for the crime of theft by unlawful

taking, the Commonwealth must prove, beyond a reasonable doubt, that a

person unlawfully took or exercised control over movable property of another

with an intent to deprive them of that property. See 18 Pa.C.S.A. § 3921(a).

      A person commits access device fraud if he “uses an access device to

obtain or in an attempt to obtain property or services with knowledge that

. . . the access device was issued to another person who has not authorized

its use[.]” 18 Pa.C.S.A. § 4106(a)(1)(ii).

      To sustain a conviction for PIC, the Commonwealth must prove that the

defendant (1) possessed an instrument of crime, (2) with intent to employ it

criminally. See 18 Pa.C.S.A. § 907(a). Under the statute, an “instrument of

crime” is defined, in pertinent part, as “[a]nything specially made or specially

adapted for criminal use.” 18 Pa.C.S.A. § 907(d).

      A person is guilty of unauthorized use of an automobile if he operates

an automobile . . . of another without consent of the owner. See 18 Pa.C.S.A.

§ 3928(a).

      Instantly, based upon the evidence presented at trial, viewed in a light

most favorable to the Commonwealth, we agree with Attorney Fielding that

the Commonwealth proved beyond a reasonable doubt Appellant committed

theft by unlawful taking, access device fraud, unauthorized use of an

automobile, and PIC. As noted earlier, after the police released the scene and

permitted Joey to enter the residence, Joey noticed that Mary’s rings and

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bank cards were missing. He stated that Mary managed her own affairs. Joey

also stated that he never possessed the bank cards in question and never

granted Appellant any permission to use them. Joey remarked that he never

had a conversation with Johnny about purchasing Johnny’s Subaru and Joey

denied ever having given permission to Appellant to drive the Subaru.

Additionally, Appellant acknowledged at trial that Mary never authorized him

to use her cards and that Johnny never gave him permission to drive the

Subaru, which Appellant drove to Sheetz shortly after the murders. Lastly,

based on the fact that Johnny suffered thirty stab wounds, the jury concluded

that Appellant necessarily possessed an instrument of crime, i.e., a knife or a

similar sharp object. See Commonwealth v. Keaton, 419 A.2d 578, 580

(Pa. Super. 1980) (holding that the jury, having concluded that appellant was

the slayer, and that death resulted from the infliction of a stab wound with a

knife, “could logically have concluded from all the evidence that appellant had

possession of a knife, and that the knife was an instrument commonly used

for criminal purposes” under Section 907(a)).

      Appellant next argues that his convictions were against the weight of

the evidence. We, however, as Attorney Fielding points out, need not address

the merits of this issue as Appellant failed to preserve it for our review. Under

Pa.R.Crim.P. 607, a challenge to the weight of the evidence generally must be

preserved in a post-sentence motion. “As noted in the comment to Rule 607,

the purpose of this rule is to make it clear that a challenge to the weight of

the evidence must be raised with the trial judge or it will be waived.”

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Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004), appeal

denied, 863 A.2d 1143 (Pa. 2004). A claim challenging the weight of the

evidence generally cannot be raised for the first time in a Rule 1925(b)

statement. Commonwealth v. Burkett, 830 A.2d 1034 (Pa. Super. 2003).

An appellant’s failure to avail himself of any of the methods for presenting a

weight of the evidence issue to the trial court constitutes waiver of that claim,

even if the trial court responds to the claim in its Rule 1925(a) opinion. Id.

Instantly, Appellant failed to challenge the weight of the evidence at

sentencing.   Additionally, as mentioned, he did not file any post-sentence

motions. Accordingly, his weight of the evidence claim is waived.

      Appellant lastly raises a claim of ineffective assistance of trial counsel.

We, however, agree with Attorney Fielding that Appellant cannot raise this

claim on direct appeal but must instead raise it in a PCRA petition.          In

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), our Supreme Court held

that as a general rule, defendants must wait to raise ineffective assistance of

counsel claims until collateral review. Only in specific limited circumstances

may a defendant raise ineffectiveness claims in post-sentence motions and on

direct appeal. See, e.g., Commonwealth v. Holmes, 79 A.3d 562, 563–64

(Pa. 2013) (trial court has discretion to entertain ineffectiveness claims on

post-verdict motions and direct appeal where: (1) claim of ineffectiveness is

apparent from record and meritorious to the extent that immediate

consideration best serves interests of justice; or (2) where good cause is

shown and defendant knowingly and expressly waives his entitlement to seek

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subsequent PCRA review from his conviction and sentence). These exceptions

do not apply here.     Appellant did not claim ineffective assistance of trial

counsel in post-verdict motions, and he did not knowingly or expressly waive

his entitlement to seek subsequent PCRA review from his conviction.           At

present, there is nothing in the record that facilitates intelligent appellate

review of Appellant’s claim of ineffective assistance.     Therefore, Appellant

must wait until PCRA proceedings to raise an ineffective assistance claim.

Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super. 2013) (appellant

cannot seek review of ineffectiveness claim on direct appeal, “as it involves

non-record-based claims, nor has Appellant waived PCRA review”).

      We have conducted an independent review of the record and addressed

Appellant’s arguments on appeal. Based on our conclusions above, we agree

with Attorney Fielding that the issues Appellant seeks to litigate in this appeal

are wholly frivolous. Additionally, we do not discern any non-frivolous issues

that Appellant could have raised.     We, therefore, grant Attorney Fielding’s

petition to withdraw and affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: December 31, 2018


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