J-S27004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSHUA ASA WITMAN,

                            Appellant                No. 1865 MDA 2015


         Appeal from the Judgment of Sentence September 21, 2015
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0003143-2014


BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                             FILED APRIL 12, 2016

       Appellant, Joshua Asa Witman, appeals from the judgment of sentence

entered on September 21, 2015, in the Lancaster County Court of Common

Pleas. Appellate counsel has filed a petition to withdraw her representation

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a

petition to withdraw from representation on direct appeal. After review, we

grant counsel’s petition to withdraw, and we affirm the judgment of

sentence.

       On June 11, 2015, Appellant was found guilty at a bench trial of one

count of arson endangering persons, graded as a felony of the first degree.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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On September 21, 2015, the trial court sentenced Appellant to a term of five

to twenty years of incarceration. This timely appeal followed.

      Before we address the questions raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc).        There are procedural and

briefing requirements imposed upon an attorney who seeks to withdraw on

appeal. The procedural mandates are that counsel must:

      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) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within the petition

to withdraw, counsel averred that she conducted an examination of the

record, including all notes of testimony.     Following that review, counsel

concluded that the present appeal is wholly frivolous.       Counsel sent to

Appellant a copy of the Anders brief and petition to withdraw, as well as a

letter, a copy of which is attached to the motion.      In the letter, counsel

advised Appellant that he could represent himself or retain private counsel.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

      in the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel must: (1) provide a summary of

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        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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

        We conclude that counsel’s brief is compliant with Santiago. It sets

forth the factual and procedural history of this case and outlines pertinent

legal authority.     In the brief, counsel identifies four issues.   These issues

confront: 1) the sufficiency of the evidence; 2) the discretionary aspects of

Appellant’s sentence; 3) the legality of Appellant’s sentence; and 4) the

failure to pursue suppression of evidence. Anders Brief at 8-11.1

        The first issue identified in the Anders brief assails the sufficiency of

the evidence supporting Appellant’s convictions. In reviewing a sufficiency

challenge, “we must decide whether the evidence admitted at trial, and all

reasonable inferences drawn therefrom in favor of the Commonwealth, as

verdict winner,” are sufficient to support all elements of the offense.

Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015). The trial court,

sitting as the finder of fact, is free to believe some, all, or none of the

evidence.      Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007);

Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa. Super. 2015).
____________________________________________


1
    For purposes of our discussion, we have renumbered the issues.



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Moreover, the Commonwealth may sustain its burden of proof by wholly

circumstantial evidence.   Commonwealth v. Diggs, 949 A.2d 873 (Pa.

2008); Commonwealth v. Vogelsong, 90 A.3d 717 (Pa. Super. 2014),

appeal denied, 102 A.3d 985 (Pa. 2014). As an appellate court, we may not

re-weigh the evidence and substitute our judgment for that of the fact-

finder. Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

     Appellant asserts that the evidence was insufficient to convict him of

arson. The crime of arson is set forth in the Crimes Code as follows:

     (a) Arson endangering persons. --

           (1) A person commits a felony of the first degree if
           he intentionally starts a fire or causes an explosion,
           or if he aids, counsels, pays or agrees to pay another
           to cause a fire or explosion, whether on his own
           property or on that of another, and if:

                 (i) he thereby recklessly places another
                 person in danger of death or bodily
                 injury, including but not limited to a
                 firefighter, police officer or other person
                 actively engaged in fighting the fire[.]

18 Pa.C.S. § 3301(a)(1)(i).

     The record reflects that at trial, Appellant’s brother, Justin Witman,

testified that Appellant believed there were aliens living in the house

Appellant shared with his mother. N.T., Trial, 6/11/15, at 133-135. Delores

Lausch, Appellant’s next-door-neighbor, testified that while Appellant’s

house was burning, she saw Appellant riding his bicycle away from the fire.

Id. at 70. Pennsylvania State Police Trooper John Clifford, who testified as


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an expert on fire investigation, concluded that the fire originated in a wood

box inside Appellant’s home under the staircase in the basement. Id. at 50,

55-56.   The wood box contained combustible materials and smelled of a

petroleum-based accelerant.    Id. at 55-57.   Trooper Clifford saw a plastic

bottle of transmission fluid in the charred wood box, and he found an empty

gasoline can near combustible material in the basement. Id. at 56-57. The

trooper then testified that two electrical breakers at the house were tripped:

one was marked “refrigerator” and one was marked “basement outlets.” Id.

at 58. He further testified that it was unusual for breakers to be tripped by

a fire. Id. Trooper Clifford concluded that the fire was intentionally started

in the wood box under the stairs, and an accelerant was used. Id. at 59.

      The Commonwealth also presented the testimony of Sergeant Phillip

Snavely of the Ephrata Police Department, who testified that at the time of

the fire, he encountered Appellant riding his bicycle. N.T., Trial, 6/11/15, at

33. Sergeant Snavely stated that he informed Appellant that his house was

on fire, but Appellant was indifferent and seemingly unsurprised by this

information.    Id. at 34.    Sergeant Snavely then stated that Appellant

stoically asked if the house had burned down. Id. at 35. The sergeant then

testified that according to Appellant’s mother, the wood box, which was the

origin of the fire, should not have contained firewood because it was June.

Id. at 35-36.    Sergeant Snavely testified that Appellant admitted bringing

firewood inside the house and placing it in the wood box earlier that day.


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Id. at 35.    Additionally, Appellant’s uncle, Dennis Overly, the owner of

Appellant’s house, testified that Appellant had previously done damage to

the home. Id. at 83. Appellant told Mr. Overly that somebody had “gassed”

his room, and Appellant felt he had to destroy his bed and rip out all of the

carpeting. Id. Mr. Overly testified that Appellant thought that aliens lived in

the walls of the house. Id. Mr. Overly also testified that the transmission

fluid and gasoline should have been in the garage, and there was no reason

for those items to be in the basement. Id. at 86-87.

      The Commonwealth also presented the testimony of the detective who

interviewed Appellant. Detective Kenneth Lockhart testified that during the

interview, Appellant informed him that there were demons in the basement

that came out of a portal and told him what to do. N.T., Trial, 6/11/15, at

118. Appellant stated that it was “very likely that I could have started the

fire, but I don’t know.” Id.

      In order to establish the danger the fire posed, the Commonwealth

presented the testimony of Lieutenant Cody Bowen of the Ephrata Fire

Department. He testified that twenty-five firefighters responded to the fire

at Appellant’s home. N.T., Trial, 6/11/15, at 42. Lieutenant Bowen stated

that the firefighters entered the house and proceeded to the basement. Id.

at 45. He said that being in a basement during a fire is especially dangerous

because, with only one way out, there is a risk of getting trapped.        Id.

Moreover, Lieutenant Bowen stated that an additional danger of being in a


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basement is the risk that the floor above will collapse due to the fire. Id. at

46.

      After reviewing the evidence in the light most favorable to the

Commonwealth, we conclude that there was sufficient evidence to find

Appellant guilty of arson endangering persons. The testimony reflected that

Appellant was seen coming from the house as it was burning. He was not

surprised when he was told that the house was on fire. He was tormented

by aliens and demons he perceived to be living in the house, and he

admitted placing firewood in the wood box earlier in the day, prior to

witnesses    seeing   the   house   on   fire.    While   circumstantial,   the

aforementioned testimony connected Appellant to the fire in time and

proximity. Appellant’s delusions of aliens and demons, which he stated may

have caused him to start the fire, coupled with his admission that he stocked

the wood box before the fire and his lack of surprise that the house was

burning, cause this Court to conclude there was sufficient evidence to find

Appellant guilty of arson. Additionally, the fire endangered the firefighters

who were tasked with entering the burning structure to extinguish the blaze.

Thus, we agree that a challenge to the sufficiency of the evidence is

frivolous.

      Next, Appellant contests the discretionary aspects of his sentence. We

note that there is no automatic right to appeal the discretionary aspects of a

sentence. Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.


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2014); citing 42 Pa.C.S. § 9781(b).      Rather, Appellant must petition this

Court for permission to appeal the discretionary aspects of his sentence. Id.

at 1038-1039. As we observed in Commonwealth v. Moury, 992 A.2d 162

(Pa. Super. 2010):

        An appellant challenging the discretionary aspects of his
        sentence must invoke this Court’s jurisdiction by satisfying a
        four-part test:

             We conduct a four-part analysis to determine: (1)
             whether appellant has filed a timely notice of appeal,
             see Pa.R.A.P. 902 and 903; (2) whether the issue
             was properly preserved at sentencing or in a motion
             to reconsider and modify sentence, see Pa.R.Crim.P.
             720; (3) whether appellant’s brief has a fatal defect,
             Pa.R.A.P. 2119(f); and (4) whether there is a
             substantial question that the sentence appealed from
             is not appropriate under the Sentencing Code, 42
             Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed.      Id. (citing Commonwealth v. Mann, 820

A.2d 788 (Pa. Super. 2003)).

        Here, we conclude that Appellant failed to satisfy the requirements for

appellate review because he did not present this challenge at his sentencing

hearing or in a post-sentence motion. Therefore, we agree with counsel that

this claim of error is frivolous because the issue was waived. Anders Brief

at 9.




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       In his third issue, Appellant disputes the legality of his sentence. As a

general rule, “an illegal sentence is one that exceeds the jurisdiction or

power of the sentencing court to impose.” Commonwealth v. Tobin, 89

A.3d 663, 668 (Pa. Super. 2014) (citation omitted).         “The two most basic

and classic examples of an illegal sentence are sentences that exceed the

statutory maximum and a sentence imposed by a court without jurisdiction.”

Id. Here, Appellant was convicted of arson, which was graded as a felony of

the first degree, and the statutory maximum sentence was twenty years of

incarceration. 18 Pa.C.S. § 1103. Accordingly, Appellant’s sentence of five

to twenty years of incarceration did not exceed the statutory limits and was,

therefore, a legal sentence.

       Finally, Appellant alleges that trial counsel was ineffective for failing to

file a suppression motion.        However, counsel for Appellant concedes that

pursuant to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),2 this claim

is not proper on direct appeal and should be raised in a petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. Anders Brief at 10-11. We agree with counsel’s assessment that this

claim of ineffectiveness must await collateral review. Accordingly, we need

not address it further.

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2
  In Grant, our Supreme Court held that, as a general rule, claims
concerning ineffectiveness of counsel should await collateral review rather
than be addressed on direct appeal. Grant, 813 A.2d at 738.



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      We have independently reviewed the record in order to determine if

counsel’s assessment about the frivolous nature of the present appeal is

correct.    See Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.

Super. 2015) (after determining that counsel has satisfied the technical

requirements of Anders and Santiago, this Court must conduct an

independent review of the record to determine if there are additional, non-

frivolous issues overlooked by counsel). After review of the issues raised by

counsel and our independent review of the record, we conclude that an

appeal in this matter is frivolous. Accordingly, we grant counsel’s petition to

withdraw and affirm the judgment of sentence.

      Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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