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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELIJAH SCOTT                               :
                                               :
                       Appellant               :   No. 524 EDA 2017

          Appeal from the Judgment of Sentence September 15, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009111-2011


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 21, 2019

        Elijah Scott appeals from the judgment of sentence imposed on

September 15, 2016, in the Court of Common Pleas of Philadelphia County.

A jury convicted Scott of attempted murder, aggravated assault, firearms not

to be carried without a license, carrying firearms on public streets in

Philadelphia, and possessing an instrument of crime (PIC).1 The trial court

sentenced Scott to an aggregate term of 10 to 20 years’ imprisonment.

Contemporaneous with this appeal, counsel for Scott has filed a motion

seeking permission to withdraw from representation and an Anders brief.

See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 981). In the Anders brief, counsel identifies
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   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 901(a), 2702(a), 6101(a)(1), 6108 and 907, respectively.
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the following claims as having possible merit: (a) trial counsel was ineffective

in failing to move for judgment of acquittal, (b) the evidence was insufficient

to sustain the jury’s verdict, (c) the trial court committed reversible error by

not sua sponte vacating the jury’s guilty verdict, (d) a new trial is warranted

because the prosecutor interfered with Scott’s right to call Keisha Davis as a

defense witness, (e) the trial court committed an abuse of discretion by

denying a motion for mistrial and an objection after the prosecutor asked the

complainant if he stated the previous day he was afraid to testify, and (f) the

trial court committed an abuse of discretion by overruling objections to

inadmissible hearsay. Scott has filed a pro se response to the Anders brief

regarding these claims and asserts ineffective assistance of both trial and

appellate counsel.   For the following reasons, we affirm the judgment of

sentence and grant counsel’s motion seeking permission to withdraw.

      The procedural history and facts of this case are well-known to the

parties. Therefore, we simply state, relevant to the issues identified in the

Anders brief, the following background.

      Scott’s convictions stem from the shooting of Gary Francis, Jr. (the

victim), on April 8, 2011, at about 1:00 a.m.      Following the shooting, the

victim was taken to a nearby hospital. The victim spent two months recovering

from numerous gunshot wounds and suffered permanent injuries. The victim

provided details of the shooting and identified Scott as his assailant in a

written statement he gave to Detective Vincent Parker on April 19, 2011, and

at the August 9, 2011 preliminary hearing.

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        In his statement, the victim described the incident:

        I had just left the Hide Away Bar at Cobb and Catherine. While I
        was walking, an older black Cadillac pulled up at 61st and Christian
        Street. The guy Feek got out the front passenger door and asked
        me to go robbing with them. I couldn’t see who else was in the
        car. I told Feek no. And that’s when Feek pulled out a dark gun
        and said to me, Take this with me. Feek shot the gun at me. And
        I heard the first shot go by my right ear. I think it grazed my ear.
        I started twisting my body so he couldn’t shoot me. But he shot
        me in the stomach and chest. He shot at me and then he got back
        in the black Cadillac and the car took off. It was on 61st Street. I
        dropped my keys and I called the police from my cell phone. The
        cops came and took me to the hospital.

N.T, 6/29/2016, at 63-64; Commonwealth Exhibit 4.2

        At the time he gave the statement, the victim also identified a

photograph of Scott, and stated he knew the person in the photograph as

“Feek.” In addition, he stated he believed Scott shot him because he and

Scott had fought about a week earlier in the Hide Away Bar over a cell phone

belonging to a barmaid named Keisha. See N.T., 6/29/2016, at 70-71, 74.

        In October, 2014, during Scott’s first trial, 3 the victim testified he could

not identify any person in the courtroom as the person who shot him.

However, the victim testified he was shot by someone who had just emerged

from a car. See id. at 102-105. At the first trial, the victim also testified he

and Scott would see each other at the Hide Away Bar. See id. at 113. At

Scott’s 2016 trial, the victim testified he could not recall any details of the


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2   In the statement, the name of the victim’s shooter is spelled “Feke.”

3   Scott’s October, 2014, trial ended in a mistrial.

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incident, did not see who shot him, and also stated he never went to the Hide

Away Bar. See id. at 38, 41, and 114. The Commonwealth proceeded to

question the victim, using the written statement he gave to Detective Parker

and his preliminary hearing testimony.

       Scott’s second trial ended on July 1, 2016, when the jury convicted Scott

as stated above. Following sentencing, Scott filed a post sentence motion that

was denied by operation of law. This appeal followed.4,   5


       When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any of

the substantive issues raised on appeal. See Commonwealth v. Bennett,

124 A.3d 327, 330 (Pa. Super. 2015). enumerated Here, our review of the

record reveals counsel has substantially complied with the requirements for


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4 The record reflects counsel filed a notice of appeal on January 19, 2017,
before the post sentence motion was denied by operation of law on January
25, 2017. In this regard, Pennsylvania Rule of Appellate Procedure 907(a)(5)
provides:

       A notice of appeal filed after the announcement of a determination
       but before the entry of an appealable order shall be treated as
       filed after such entry and on the day thereof.

Pa.R.A.P. 907(a)(5). See Commonwealth v. Little, 879 A.2d 293, 296 n.6
(Pa. Super. 2005) (Superior Court would entertain appeal that was filed
prematurely when petition for reconsideration was still pending because order
denying reconsideration was subsequently entered).

5  Appellate counsel filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an
Anders brief. Counsel’s Rule 1925(c)(4) statement indicated Scott’s wish to
raise six listed issues on appeal. The Honorable Sierra Thomas Street did not
file an opinion.

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withdrawal outlined in Anders, supra, and its progeny. Specifically, counsel

requested permission to withdraw based upon his determination that the

appeal is frivolous, filed an Anders brief pursuant to the dictates of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a

copy of the Anders brief to Scott and advised Scott of his right to retain new

counsel or proceed pro se. See Commonwealth v. Cartrette, 83 A.3d 1030,

1032 (Pa. Super. 2013) (en banc). As stated above, Scott has filed a response

to the Anders brief. Accordingly, we will proceed to examine the record and

make an independent determination of whether the appeal is wholly frivolous.

See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc).

      The first claim identified in the Anders brief is an ineffective assistance

claim alleging, “[t]rial counsel was ineffective for failing to move for a

judgment of acquittal because the complainant testified that [Scott] did not

shoot him and the conviction was predicated on the complainant’s out of court

statements, which [Scott] contends constituted inadmissible hearsay.”

Anders Brief at 15.     In addition, Scott, pro se, asserts trial counsel was

ineffective in failing to object on hearsay grounds to the testimony and

statements of the victim and the victim’s father. See Scott’s Response at 24.

These ineffectiveness claims, however, are premature. In Commonwealth

v. Holmes, 79 A.3d 562 (Pa. 2013), the Pennsylvania Supreme Court

reaffirmed the general rule first set forth in Commonwealth v. Grant, 813


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A.2d 726 (Pa. 2002), that “claims of ineffective assistance of counsel are to

be deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal.”          Holmes, supra, 79 A.3d at 576. Although

there are three recognized exceptions to that general rule, no exception is

applicable here.6 Accordingly, these ineffectiveness claims are not cognizable

on direct appeal and must await collateral review.

       The second issue set forth in the Anders brief is a claim that the

evidence was insufficient to sustain the jury’s verdict because it was

predicated solely on hearsay consisting of the out of court statements of the

victim and because the Commonwealth failed to corroborate what was

contained in the victim’s out of court statements.      This claim overlooks well

settled case law and our Rules of Evidence.



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6 The Holmes Court recognized two exceptions: (1) where the trial court
determines that a claim of ineffectiveness is “both meritorious and apparent
from the record so that immediate consideration and relief is warranted[;]” or
(2) where the trial court finds “good cause” for unitary review, and the
defendant makes a “knowing and express waiver of his entitlement to seek
PCRA review from his conviction and sentence, including an express
recognition that the waiver subjects further collateral review to the time and
serial petition restrictions of the PCRA.” Holmes, supra, 79 A.3d at 564, 577
(footnote omitted). A third exception was recently adopted by our Supreme
Court for “claims challenging trial counsel’s performance where the defendant
is statutorily precluded from obtaining PCRA review.” Commonwealth v.
Delgros, 183 A.3d 352, 361 (Pa. 2018) (“[W]here the defendant is
ineligible for PCRA review because he was sentenced only to pay a fine, we
agree with Appellant that the reasoning in Holmes applies with equal force to
these circumstances.”)

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      Initially, it bears emphasis that the question of sufficiency is not

assessed on a diminished record — we consider all evidence without

consideration as to its admissibility. See, e.g., Commonwealth v. Sanford,

863 A.2d 428, 431-431 (Pa. 2004); Commonwealth v. Gray, 867 A.2d 560,

567 (Pa. Super. 2005).

      Moreover, Pennsylvania Rule of Evidence 803.1(1) provides an

exception to the rule against hearsay and permits the substantive admission

of a prior inconsistent statement “if the declarant testifies and is subject to

cross examination about the prior statement” and if it “was given under oath

subject to the penalty of perjury at a trial, hearing, or other proceeding, or in

a deposition,” if it “is a writing signed and adopted by the declarant,” or if it

“is a verbatim contemporaneous electronic recording of an oral statement.”

Pa.R.E. 803.1(1).

      Furthermore, in Commonwealth v. Brown, 52 A.3d 1139, 1168 (Pa.

2012), the Pennsylvania Supreme Court adopted the view “to treat prior

inconsistent statements of witnesses — who have testified at trial and were

subject to cross-examination so that the finder-of-fact could hear the

witnesses’ explanations for making the out-of-court statements, and for their

trial recantation — as sufficient evidence upon which a criminal conviction may

properly rest if the finder-of-fact could, under the evidentiary circumstances

of the case, reasonably credit those statements over the witness’s in-court

recantations.”   The Brown Court held:


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      [C]riminal convictions which rest only on prior inconsistent
      statements of witnesses who testify at trial do not constitute a
      deprivation of a defendant’s right to due process of law, as long
      as the prior inconsistent statements, taken as a whole, establish
      every element of the offense charged beyond a reasonable doubt,
      and the finder-of-fact could reasonably have relied upon them in
      arriving at its decision. Prior inconsistent statements, which meet
      the requirements for admissibility under Pennsylvania law, must,
      therefore, be considered by a reviewing court in the same manner
      as any other type of validly admitted evidence when determining
      if sufficient evidence exists to sustain a criminal conviction.

Id., 52 A.3d at 1171

      After the victim’s recantation at trial, pursuant to Pa.R.E. 803.1(1) and

Brown, the victim’s written statement that was signed and adopted by him,

and   the   victim’s   preliminary   hearing   testimony, were   admissible    as

substantive evidence and established the elements of the crimes with which

Scott was charged. Consequently, we agree with counsel’s assessment in the

Anders Brief that an appeal on the sufficiency of the evidence is frivolous.

      The third issue in the Anders Brief is a claim that the trial court

committed reversible error by not sua sponte vacating the jury’s guilty verdict

given that the verdict was predicated on evidence recanted by the complainant

and inadmissible hearsay evidence consisting of the prior statements of the

complainant. This claim, while framed in the context of the duty of the trial

court to arrest the judgment, represents a challenge to the sufficiency of the

evidence identical to the second issue. Therefore, based upon our previous

discussion, we agree with counsel that this issue is likewise frivolous.




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      The fourth issue identified in the Anders brief is the claim that a new

trial is warranted because the prosecutor interfered with Scott’s right to call

Keisha Davis as a defense witness “by falsely telling [her] that [Scott’s] trial

was over and her testimony was no longer needed.”            Anders Brief at 21.

This claim, however, is waived because it was not raised and preserved in the

trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). On June 30, 2016,

Ms. Davis was in court, but was not called by the Commonwealth to testify.

See N.T., 6/30/2016, at 197. When trial counsel informed the court he wished

to call Ms. Davis in the defense’s case, she was not present, and the

Commonwealth informed the court Ms. Davis would be made available to the

defense on the following day.      See id. at 195-197; N.T., 7/1/2016, at 3.

Thereafter, Ms. Davis failed to appear in court on July 1, 2016, the last day of

trial, the trial court refused trial counsel’s request for a continuance, and trial

counsel did not object or request a mistrial.        See N.T., 7/1/2016, at 4.

Accordingly, waiver applies, and, as such, this claim is frivolous. See

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding

that when an issue has been waived, “pursuing th[e] matter on direct appeal

is frivolous”).

      The fifth issue set forth in the Anders brief is that the trial court

committed an abuse of discretion by denying a motion for mistrial and an

objection proffered after the prosecutor asked the victim if he stated the


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previous day that he was afraid to testify, because the jury could have inferred

that the victim was afraid to identify Scott because of threats made by Scott.

      On cross-examination, in a line of questioning concerning the victim’s

recantation, trial counsel asked the victim whether he had spoken to his father

about the case between the preliminary hearing and October, 2014 (the first

trial), to which the victim replied, “No.” N.T., 6/29/2016, at 165. On redirect,

the Commonwealth questioned the victim about whether he spoke to his

father about the case:

      [COMMONWEALTH]: Now, counsel asked you if [you] ever recall
      speaking to your dad about this case. Do you remember that?

      [THE VICTIM]: Yes.

      [COMMONWEALTH]: Okay. And you have -- you never spoken
      [sic] to your dad about this case?

      [THE VICTIM]: Correct.

      [COMMONWEALTH]: Okay. You spoke to him in the hospital,
      correct?

      [THE VICTIM]: I can’t recall.

      [COMMONWEALTH]: Okay. You don’t recall?

      [THE VICTIM]: No.

      [COMMONWEALTH]: Do you recall talking to him about this case
      last night?

      [THE VICTIM]: No.

            [COMMONWEALTH]: Okay. Do you recall telling him that
            you didn’t want to come to court today?

            [THE VICTIM]: No.

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            [COMMONWEALTH]: Okay. Do you recall talking to him
            about the fact that you –

            [DEFENSE COUNSEL]: I’m going to object to this. There’s
            no basis in the record. There’s no basis, in fact, as to this
            line of questioning. No foundation laid.

            [THE COURT]: It may be outside the scope of your redirect.

            [COMMONWEALTH]: Well, but it does -- I mean, he asked
            the question about whether he had ever spoken to his father
            about the case, at all, ever. Counsel asked the question.

            [DEFENSE COUNSEL]: The question was did you ever speak
            to your father about this. That was my question.

            [COMMONWEALTH]: Yeah, about this case was actually the
            question.

            [THE COURT]: Overruled.

      [COMMONWEALTH]: Do you recall talking to him about it?

      [THE VICTIM]: No.

      [COMMONWEALTH]: Okay. And you never told him last night that
      you didn’t want to come to court?

      [THE VICTIM]: No.

      [COMMONWEALTH]: Okay. You never told him last night that you
      were scared?

      [THE VICTIM]: No.

            [DEFENSE COUNSEL]: I move for a mistrial, Your Honor.
            There’s no basis of fact for that particular question.

N.T., 6/29/2016, at 198-200.      The trial court then held an off-the-record

sidebar discussion, after which it issued its ruling that overruled the objection

and denied the mistrial motion.

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       “The scope of redirect is largely within the discretion of the trial court”

and “when a party raises an issue on cross-examination, it will be no abuse of

discretion for the court to permit re-direct on that issue in order to dispel any

unfair inferences.”     Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117

(Pa. 1981).      Here, on cross examination, trial counsel asked the victim

whether he had spoken to his father about the case.             On redirect, the

Commonwealth questioned the victim about whether he actually said nothing

to his father, which was based upon the anticipated testimony of the victim’s

father that the day before he had spoken with his son who indicated he was

scared and did not want to come to court. See N.T., 6/29/2016, at 274.7 The

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7  During direct examination of the victim’s father by the prosecutor, the
following exchange occurred:

       Q. Did you -- did you have an opportunity to speak to your son
       last night?

       A. Yes, I did.

       Q. Okay. Were you aware that he did come to court yesterday?

       A. Yes.

       Q. Okay. Did he tell you anything about whether or not he wanted
       to come today?

       A. Our initial conversation -- because I was unaware that he didn’t
       come the first day. And when we spoke, he told me he was scared.
       He didn’t want to come. He didn’t want to relive it. He wanted to
       move on with his life. He’s come a long way. And after that
       conversation with him, I spoke with him in detail and he showed
       up.



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prosecutor’s question had a good faith basis, did not accuse Scott of

threatening      the   victim,8   and   the    question   was   appropriate   redirect

examination. Therefore, the trial court acted within its discretion in overruling

the objection and request for mistrial based upon the scope of redirect

examination.      Accordingly, this issue is frivolous.

       The sixth and final claim is that the trial court abused its discretion by

overruling objections to inadmissible hearsay. Specifically, Scott claims the

Commonwealth introduced inadmissible hearsay when the trial court allowed

Detective Parker to testify the victim remembered the statement he gave,

stating Scott was the person who shot him.                The detective stated the

conversation took place in October, 2014 (the time of the first trial), in a court

anteroom. Detective Parker testified that while Scott identified his prior

statement, he stated that the part of his statement identifying Scott as the

person who shot him was not correct. See N.T., 6/30/2016, at 43-46.

       We agree with counsel that the challenge to Detective Parker’s

testimony is frivolous. As already discussed, Pa.R.E. 803.1(1) allowed the


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       Q. Okay. And that was today, correct?

       A. Yes.

N.T., 6/29/2016, at 274.

8 Being scared to appear in court does not mean there has been a threat. In
fact, as the victim’s father testified, the victim was scared because he did not
want to relive the memory of being shot. See N.T., 6/29/2016, at 274.

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victim’s prior inconsistent statement to be introduced as substantive evidence

of Scott’s guilt.   Any error in admitting the detective’s testimony that the

victim remembered the signed, written statement in October, 2014, before

trial, would be – at most – harmless error, since the detective testified the

victim had stated the part of his statement identifying Scott as his shooter

was incorrect. Hence, any possible harm was de minimis.

      In sum, based on our review, we find all claims identified by counsel in

the Anders brief and by Scott in his pro se response, excepting the

ineffectiveness claims that are premature, are frivolous. Therefore, we affirm

the judgment of sentence and grant counsel’s motion to seeking permission

to withdraw.

      Judgment of sentence affirmed. Motion seeking permission to withdraw

as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/19




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