J-S35007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEFFREY JOSEPH ANDERSON

                            Appellant                 No. 1145 WDA 2016


              Appeal from the Judgment of Sentence July 21, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003325-2015


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED JUNE 29, 2017

        Jeffery Anderson appeals from the judgment of sentence, entered in

the Court of Common Pleas of Erie County, following his conviction for

robbery,1 theft by unlawful taking,2 receiving stolen property,3 simple

assault,4 and possessing an instrument of crime.5 Anderson’s counsel seeks

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

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3701(a)(1)(II).
2
    18 Pa.C.S.A. § 3921(a).
3
    18 Pa.C.S.A. § 3925(a).
4
    18 Pa.C.S.A. § 2701(a)(3).
5
    18 Pa.C.S.A. § 907(a).
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Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

grant counsel’s petition to withdraw and affirm Anderson’s judgment of

sentence.

        The incident leading to Anderson’s arrest and conviction occurred at

the Avalon Hotel (“the Avalon”), in Downtown Erie, on the night of October 1

into the morning of October 2, 2015. Dawn Keister was working alone at

the front desk when a male entered the Avalon wearing a blue hooded

sweatshirt with the hood up and a scarf, covering his face from the nose

down.     The man pulled out a knife and demanded money from the cash

register. Keister gave the man approximately seventy dollars from the cash

register. The man then demanded to see what was under the cash register

tray.    The Avalon had previously kept money under the tray, but had

stopped this practice about eight years prior to the incident. The man left

the Avalon upon seeing that there was no money under the tray.

        Keister testified that she had instantly recognized the male as “Jeff,” a

former Avalon employee who Keister worked with for a period of about six

months approximately ten years earlier. Anderson was no longer working at

the Avalon when the hotel ended its practice of keeping money under the

tray of the cash register.     Keister also testified that she had spoken with

Anderson two days prior to the incident, when Anderson had come into the

Avalon wearing a blue hooded sweatshirt and asked her if he could use the

bathroom.




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        During the Erie Police Department’s investigation of the robbery, a

photo lineup was given to Keister, in which she was almost immediately able

to identify Anderson’s picture as the individual who robbed the Avalon.      A

photograph taken at a Walmart on September 29, 2015, also showed

Anderson wearing a blue hooded sweatshirt. In addition, Detective Sergeant

Rick Lorah testified that during his questioning of Anderson, Anderson had

admitted going to the Avalon on the night of the incident.

        A jury convicted Anderson on May 10, 2016, and on July 21, 2016, he

was sentenced to serve an aggregate term of 40 to 120 months’

incarceration followed by five years’ probation.       Anderson filed a post-

sentence motion to modify or reduce sentence, which the trial court denied

on July 29, 2016.     Anderson filed a timely notice of appeal on August 2,

2016. On August 10, 2016, Anderson’s counsel filed a statement of intent to

file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).          The trial court

transmitted the record without an opinion to this court on September 7,

2016.

        Anderson raises the following issue for our review:

        Whether the interests of justice entitle the appellant to a new
        trial as the jury’s verdict was against the weight of the evidence
        such that it effectively shocked the conscience.

Brief of Appellant, at 3.

        Counsel has filed a petition to withdraw pursuant to the requirements

set forth in Anders and Santiago. Our Supreme Court in Santiago held:



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     [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 the appeal is frivolous.

Santiago, 978 A.2d at 361.       Once counsel has satisfied the procedural

requirements of Santiago, this Court engages in an independent evaluation

of the record to determine if the claims on appeal are wholly frivolous.

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).

     Counsel’s brief satisfies the necessary procedural requirements.      Her

brief provides “a summary of the procedural history and facts, with citations

to the record.” Santiago, 978 A.2d at 361; Brief of Appellant, at 4-5. She

further provides a review of the record, and raises the sole issue she

believes arguably supports an appeal. Id. at 360; Brief of Appellant, at 7.

Counsel’s brief also states her conclusion that the claims are frivolous, and

she provides her reasoning for this conclusion. Id.; Brief of Appellant, at 7,

8. Lastly, counsel notified Anderson of her request to withdraw and provided

him with a copy of the brief and a letter explaining his right to retain new

counsel or proceed pro se as to any issues he believes might have merit.

     Counsel having satisfied the procedural requirements for withdrawal,

we must now examine Anderson’s claim to determine if the appeal is

frivolous. Anders, 386 U.S. at 744; Rojas, 874 A.2d at 639. Specifically,

Anderson asserts that his conviction was against the weight of the evidence.




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       An allegation that the verdict is against the weight of the
       evidence is addressed to the discretion of the trial court. A new
       trial should not be granted because of a mere conflict in the
       testimony or because the judge on the same facts would have
       arrived at a different conclusion. A trial judge must do more
       than reassess the credibility of the witnesses and allege that he
       would not have assented to the verdict if he were a juror. Trial
       judges, in reviewing a claim that the verdict is against the
       weight of the evidence[,] do not sit as the thirteenth juror.
       Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa. 2013), quoting

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,

quotation marks, and footnote omitted). In other words, a court may grant

a new trial because the verdict is against the weight of the evidence only

when the verdict rendered is so contrary to the evidence as to shock one’s

sense of justice.6 Id. at 651.

       Upon review of the record as a whole, we conclude that the verdict

was not so contrary to the weight of the evidence as to shock one’s sense of


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6
   Here, the trial court denied Anderson’s post-sentence challenge to the
weight of the evidence. However, because counsel filed a notice of intent to
file an Anders brief, the court declined to write an opinion. Thus, we
undertake our review without the benefit of the trial court’s analysis on this
issue. See Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004)
(“While appellate review of a weight of the evidence claim normally involves
examining the trial court’s exercise of discretion in its review of the fact-
finder’s determinations, instantly, we must test the merits of Appellant’s
claim without the benefit of a trial court’s opinion.” (citation omitted)).




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justice.   Snyder, 870 A.2d at 346.     Keister testified that she immediately

recognized the robber as Anderson. She further testified that the individual

possessed information about the Avalon’s money storage practices dating to

the time of Anderson’s employment at the hotel. Keister was able to identify

Anderson from a photo lineup as the individual who robbed the Avalon.

Anderson was further identified by the photograph that was taken of him at

Walmart showing him wearing a blue hooded sweatshirt.             Additionally,

Anderson admitted during an interview with Detective Lorah that he had

been to the Avalon on the night of the robbery.

      To succeed on his weight claim, Anderson must raise evidence that,

notwithstanding the above facts that support the jury’s verdict, is “so clearly

of greater weight that to ignore them or to give them equal weight with all

the facts is to deny justice.” Widmer, 744 A.2d at 752. While Anderson

correctly states this legal standard, he does not refer to any evidence to

show that the jury’s verdict should have shocked our sense of justice, and

our own independent review reveals none. Therefore, Anderson’s weight of

the evidence challenge is meritless.

      Counsel has satisfied all procedural requirements for withdrawal.

Furthermore, after this Court’s review of the record, we find Anderson’s

claim to be meritless and affirm his judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017




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