J-S76010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ANDREW FRANCIS OWENS,

                          Appellant                   No. 647 WDA 2018


      Appeal from the Judgment of Sentence Entered March 22, 2018
             In the Court of Common Pleas of McKean County
           Criminal Division at No(s): CP-42-CR-0000348-2016


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 22, 2019

      Appellant, Andrew Francis Owens, appeals from the judgment of

sentence of an aggregate term of 75 to 156 months’ incarceration, imposed

after a jury convicted him of various offenses, including persons not to possess

a firearm, theft by unlawful taking, receiving stolen property, and criminal

conspiracy. On appeal, Appellant seeks to challenge the trial court’s denial of

his post-sentence motion for a new trial. Additionally, his counsel, Dennis

Luttenauer, 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.

      Appellant was convicted of the above-stated offenses based on evidence

that he and a cohort, Shawn Mott, stole various items, including a handgun,
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from a vehicle belonging to Mark Pessia. After Appellant’s conviction, but prior

to his sentencing, he filed a “Motion for a New Trial Pursuant to Pa.R.Crim.P.

607.”     Therein, Appellant contended that his conviction for persons not to

possess a firearm was contrary to the weight of the evidence. On March 15,

2018, the trial court denied Appellant’s motion for a new trial. On March 22,

2018, the court sentenced him to the aggregate term stated supra.

        Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Therein, Appellant preserved one issue for

our review: “Whether the trail [sic] court erred in denying [Appellant’s] motion

for a new trial pursuant to Pa.R.Crim.P. 607, as filed by trial counsel on March

12, 2018?” Pa.R.A.P. 1925(b), 5/3/18, at 1. On June 7, 2018, the trial court

filed a Rule 1925(a) opinion addressing this claim.

        Attorney Luttenauer subsequently filed with this Court a petition to

withdraw and an Anders brief, discussing Appellant’s above-stated issue and

concluding that it is frivolous, and that Appellant has no other, non-frivolous

issues he could pursue herein. Accordingly,

        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).

        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;

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         (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, 879-80 (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 Luttenauer’s Anders brief 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 that could

arguably support Appellant’s claim, 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. Attorney Luttenauer also states in his petition to


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withdraw that he has supplied Appellant with a copy of his Anders brief and

a letter advising Appellant of the rights enumerated in Nischan.               While

counsel initially failed to attach a copy of that letter to his petition to withdraw,

he later provided this Court with a copy in response to a per curiam order we

issued on September 18, 2018.            Accordingly, Attorney Luttenauer has

complied with the technical requirements for withdrawal.              We will now

independently review the record to determine if Appellant’s issue is frivolous,

and to ascertain if there are any other, non-frivolous issues he could pursue

on appeal.

      Appellant seeks to challenge the weight of the evidence to sustain his

conviction for persons not to possess a firearm. We review this claim under

the following standard:

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well settled that the jury is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses, and a new trial based on a weight of
      the evidence claim is only warranted where the jury’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate review
      is limited to whether the trial judge’s discretion was properly
      exercised, and relief will only be granted where the facts and
      inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).




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      Appellant specifically challenges the weight of the evidence to prove that

he possessed the firearm taken from Mark Pessia’s vehicle. In rejecting this

claim, the trial court reasoned as follows:

      [Appellant] was found guilty of all 10 counts in the Information
      but he only questions his conviction at Count 5, Person Not
      Possess, Use, Etc. a Firearm. The facts that … are not at issue
      [or] in dispute are: In the early morning hours of June 26, 2016,
      [Appellant], Shawn Mott and [Appellant’s] girlfriend, “Marissa,”
      were at [Appellant’s] residence in Bradford drinking beer. They
      decided to leave the residence and walk the streets of Bradford.
      They came upon a parked white truck owned by Mark Pessia. The
      truck was not locked and [Appellant] and Shawn Mott, without Mr.
      Pessia’s permission, entered the vehicle and took items from it.
      [Appellant] entered the vehicle through one door and Mott entered
      through another. They took the items they obtained back to
      [Appellant’s] residence. [Appellant] does not dispute that he has
      a prior felony conviction that prohibited him from possessing a
      firearm.

             In addition[] to the summary of facts that are not in dispute:
      Mark Pessia testified that he had his Springfield 9mm handgun in
      a black bag in his truck and he noticed a few days after June 26,
      2016 that the bag, the gun in it and other, items were missing
      [from] his truck. 1-23-18 Tr. Pgs. 26-27. Shawn Mott testified
      that “we got into it (truck) and took a bag out.” [Id. at] 51. He
      testified that he and [Appellant] entered the truck and took the
      bag. [Id.]

         A. We got to the house and went inside and we looked inside
         the bag to see what we got.

         Q. And what was inside the bag?

         A. There was a handgun.

         Q. And who all was present when you opened that bag?

         A. Me and [Appellant].

         Q. Okay. After you found that there was a firearm inside,
         what did you do?

         A. We said that we need to get rid of it.

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         Q. Okay. Who said that … you guys need to get rid of it?

         A. We both said it together.

         Q. Okay. And so, what happened next?

         A. Then [Appellant] left.

         Q. Did he take anything with him when he left?

         A. He took the handgun.

      [Id. at] 53-55.

             If there was ambiguity about whether [Appellant] knew that
      there was a gun in the black bag, if it was unclear whether
      [Appellant] was there when the bag was opened and/or whether
      [he] had picked up and left with it, there may have been a legal
      issue regarding whether he intentionally possessed it. … But at
      this point that is all hypothetical. Shawn Mott made it clear in his
      testimony that [Appellant] picked up the gun and left his residence
      with it. He knew that it was a gun and he intentional[ly] took it
      into his possession to “get rid of it.” That action was clearly
      intentional. Defense counsel vigorously cross examined Mott and
      asserted that he, not [Appellant], took the gun out of the bag and
      then kept it. He attempted to attack Mott’s credibility and
      accuracy. However, “the weight of the evidence is exclusively for
      the finder of fact who is free to believe all, part, or none of the
      evidence and to determine the credibility of the witnesses.”
      Commonwealth v. Small, 741 A.2d 666, 673 (Pa. 1999).

Trial Court Opinion, 6/7/18, at 2-4 (unnumbered).

      In light of Mott’s testimony, which the jury was entitled to credit, we

discern no abuse of discretion in the trial court’s conclusion that the verdict

did not shock its sense of justice.      Additionally, the fact that the jury

foreperson wrote three post-trial letters to the court does not alter our

decision. In Appellant’s motion for a new trial, he summarized the content of

those letters, as follows:




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      In late January and early February, 2018, the jury fore[person]
      wrote three letters to [the trial court] expressing the belief that
      [Appellant] did not have a fair trial and that the jurors had failed
      to accord [Appellant] the presumption of innocence. He believed
      he had made a “terrible mistake” in not directing the deliberation
      in a manner consistent with the jury’s duty to decide the case on
      facts, and [he] believed that the verdict would have been
      significantly different had he fulfilled his responsibilities properly.

Motion for a New Trial Pursuant to Pa.R.Crim.P. 607, 3/12/18, at 2 ¶ 8.

      While Appellant contended in his post-trial motion that “[t]he jury

fore[person]’s correspondence [with the court after trial] reflects the

unreliable nature of [Mott’s] testimony[,]” those letters were not evidence in

the case. Thus, the trial court could not consider them in assessing the weight

of the evidence to support the jury’s verdict.        Furthermore, as Attorney

Luttenauer points out, the court was not permitted to inquire into the validity

of the verdict on the basis set forth by the jury foreperson in his letters.

Pennsylvania Rule of Evidence 606 states, in pertinent part:

      (b) During an Inquiry into the Validity of a Verdict

         (1) Prohibited Testimony or Other Evidence. During an
         inquiry into the validity of a verdict, a juror may not
         testify about any statement made or incident that
         occurred during the jury’s deliberations; the effect of
         anything on that juror’s or another juror’s vote; or
         any juror’s mental processes concerning the verdict.
         The court may not receive a juror's affidavit or evidence of
         a juror's statement on these matters.

         (2) Exceptions. A juror may testify about whether:

            (A) prejudicial information not of record and beyond
            common knowledge and experience was improperly
            brought to the jury's attention; or

            (B) an outside influence was improperly brought to
            bear on any juror.

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Pa.R.E. 606(b) (emphasis added).

      Here, the jury foreperson did not allege that the jurors had considered

prejudicial information not of record, or that they had been improperly

influenced by any outside force.    Instead, the foreperson claimed that the

jurors did not properly afford Appellant a presumption of innocence. The only

way for the court to have gleaned the truth of this claim would have been to

elicit the exact sort of testimony from the jurors that Rule 606(b)(1)

precludes. Consequently, the trial court properly refused to conduct an inquiry

into the basis for the jury’s verdict, and it also appropriately disregarded the

jury foreperson’s letters in assessing the weight of the evidence to support

Appellant’s firearm conviction.

      Because Appellant’s weight-of-the-evidence claim is meritless, and we

discern no other non-frivolous issues that he could raise on appeal, we affirm

Appellant’s judgment of sentence and grant Attorney Luttenauer’s petition to

withdraw.

      Judgment of sentence affirmed.          Petition to withdraw granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2019

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