J-S44007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

TARYL AARON TAYLOR,

                        Appellant                  No. 1510 WDA 2013


       Appeal from the Judgment of Sentence Entered April 10, 2013
            In the Court of Common Pleas of Allegheny County
                        Criminal Division at No(s):
                         CP-02-CR-0001053-2012
                         CP-02-CR-0015350-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 22, 2014

     Appellant, Taryl Aaron Taylor, appeals from the judgment of sentence



                                                                  -jury trial,

of two counts of robbery, carrying a firearm without a license, resisting

arrest, escape, and possession of a controlled substance.        On appeal,



evidence. Additionally, his counsel, Victoria H. Vidt, Esq., seeks permission

to withdraw her representation of Appellant pursuant to Anders v.

California, 386 U.S. 738 (1967), as elucidated by our Supreme Court in

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended

in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,
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walked home to his apartment in the Bloomfield/Lawrenceville section of the




Id.   Appellant was arrested and charged in two separate cases for the

robberies of Sheets and Farnan, docketed at No. 2012-01053 and No. 2011-

15350, respectively. After a non-jury trial, Appellant was convicted of the

above stated crimes on February 4, 2013. He was sentenced on April 10,

2013.     Appellant filed a timely post-sentence motion (PSM) raising the

following claim:

         6. The guilty verdict in this case was against the weight of the
        evidence. These cases involve claims that [Appellant] possessed
        a firearm. At 2012-01053 no firearm was ever recovered.
        Additionally, [Appellant] introduced evidence that he was
        at another location at the time of the alleged Robbery.

        against another.      The verdict should have shocked the
        conscience of the trial court, and the guilty verdict should have
        been overruled.

Post-Sentence Motion, 4/19/13, at 3 (emphasis added). Because Appellant

claimed in his PSM that he had not yet received the transcripts of trial, the




operation of law on August 21, 2013.

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      Appellant filed a timely notice of appeal, as well as a timely court-

ordered concise statement of errors complained of on appeal in accordance

with Pa.R.A.P. 1925(b). In his concise statement, Appellant presented the

following two issues:

     A. The trial court abused its discretion in finding that the guilty
     verdict at No. [] 2012[-]01053 was not contrary to the weight of
     the evidence, specifically with regard to the identification
     of [Appellant] as one of the two perpetrators involved in the
     robbery on November 10, 2011. The victim, who was the only
     prosecution witness, testified that the robber was wearing a
     hooded sweatshirt and a hat which obscured his face from view,
     and which would have blocked any light shining on the shooter
     either from above or the side. The victim could not describe any
     particular characteristics of the robber immediately following the
     shooting. When the victim was shown a photo array, he looked
     at it for 5 to 7 minutes before selecting a picture. At trial, he
     said he was told to pick a photo that most closely resembled the
     person who robbed him. He was not told the perpetrator may or
     may not have been in the array.           For these reasons, the
     element of identification was so unreliable and
     contradictory that it was incapable of supporting the
     verdicts of guilt, and therefore, the verdicts could have only
     been based on surmise and conjecture.

     B. The trial court abused its discretion in finding that the guilty
     verdicts at No. [] 2011[-]15350 were not contrary to the weight
     of the evidence, specifically with regard to the identification
     of [Appellant] as one of the two perpetrators involved in the
     robbery on November 12, 2011. The victim testified that a gun
     was in his face during the ten-second encounter, and that the

     the robber entirely based on the fact that the hoodie worn by the
     robber was similar in appearance to one that [Appellant] was
     wearing at the time of his arrest. No evidence was presented
     that the gun found near [Appellant] at the time of his arrest was
     the same one used in the robbery. The victim could only say
     that the gun was similar in appearance and size, and could not
     give the make or model of the gun the robber used.

     were together at a party at the time of the shooting.      Finally,

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     [Appellant] testified that the victim had a motive to fabricate the
     allegations. For these reasons, the element of identification
     was so unreliable and contradictory that it was incapable
     of supporting the verdicts of guilt, and therefore, the
     verdicts could only have been based on surmise and conjecture.

Rule 1925(b) Statement, 11/4/13, at 2-4 (unnumbered pages; emphasis

added).

     On February 12, 2014, the trial court issued a Rule 1925(a) opinion

concluding that Appellant

While the court acknowledged that Appellant presented a weight of the

evidence issue in both his PSM and Rule 1925(b) statement, the court

concluded that the precise arguments proffered in those two documents

were different.   For instance, in regard to case No. 2012-01053 (victim

Sheets), the court explained that in his Rule 1925(b) statement, Appellant



3. However, in his PSM, Appella

                               Id. In the case docketed at No. 2011-15350

(victim Farnan), the court emphasized that contrary to the arguments



challenge various components of the identification evidence with a particular

emphasis upon defense generated evidence of alibi and motive to fabricate

                                             Id. at 4.

     In sum, the court concluded that b



preserved this weight of the evidence claim for appellate review. Id. (citing


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U.S. v. Joseph                                                            rties

to preserve an argument for appeal, they must have raised the same

argument in the District Court     merely raising an issue that encompasses

                                                                 On May 7,

2014, Attorney Vidt filed with this Court a petition to withdraw and an

Anders

the weight of the evidence arguments he sought to raise on appeal.

                                     Anders brief, this Court may not review

the merits of the underlying issues without first passing on the request to

                Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.

2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.

Super. 1997)). In Santiago, our Supreme Court altered the requirements

for   counsel     to   withdraw   under    Anders.     Thus,   pursuant     to

Anders/Santiago, in order to withdraw from representing an appellant,

counsel now 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)
            and

      (4)
            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.



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Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

Santiago                                                        a copy of the

Anders                      Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa. Super. 2014).

      Attending the brief must be a letter that advises the client of his

      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
      Commonwealth       v.  Nischan,      928    A.2d    349,    353
      (Pa.Super.2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).

Id.   Once we are satisfied that counsel met these technical requirements,

this Court must then conduct its own review of the record and independently

determine whether the appeal is in fact wholly frivolous. See Daniels, 999

A.2d at 594.

      Instantly, in her Anders brief, Attorney Vidt provides a detailed



citations to the record. She also includes a discussion of the two weight of

the evidence arguments that Appellant seeks to raise on appeal. Attorney



wholly frivolous and explains the reasons underlying that determination.

She also supports her rationale with citations to the record, as well as

relevant case law.    Finally, Attorney Vidt includes a letter she sent to

Appellant informing him of his right to raise any additional points that he

deems worthy, and that he may do so pro se or retain new counsel to


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pursue the appeal. Therefore, we conclude that Attorney Vidt has complied

with the requirements of Anders/Santiago.          Accordingly, we will now



determine whether there are any other issues he could arguably present on

appeal. See Daniels, 999 A.2d at 594.



us that the precise arguments he seeks to assert on appeal are waived. A

weight of the evidence claim must be raised with specificity both in a post-

sentence motion and a Rule 1925(b) statement in order to preserve it for

our review.   See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.



the trial court to identify and address the issue an appellant wishes to raise



Commonwealth v. Hitner, 910 A.2d 721, 733 n.17 (Pa. Super. 2006)



specific weight of the evidence claims in his post-sentence motion and court-



Here, Appellant presented specific arguments in both his PSM and Rule

1925(b) statement; however, his arguments in those two documents are

inc

1925(b) statement are waived because he failed to raise them in his PSM.

See Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013)

(citing Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008)

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review a legal theory in support of that claim unless that particular legal



presented in his PSM are waived because he did not raise them in his Rule

1925(b) statement. See

the Statement and/or not raised in accordance with the provisions of this



     Because Appellant failed to preserve his weight of the evidence claims

for our review, and because we ascertain no other issues of arguable merit




     Judgment of sentence affirmed. Petition to withdraw granted.

     Judge Lazarus concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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