J-S80039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ORVILLE BARRETT                            :
                                               :
                       Appellant               :   No. 1515 EDA 2018

            Appeal from the Judgment of Sentence August 24, 2017
      In the Court of Common Pleas of Lehigh County Criminal Division at
                       No(s): CP-39-CR-0002443-2016


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

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

        Appellant Orville Barrett appeals from the judgment of sentence

following his conviction for third-degree murder.1 Appellant’s counsel has filed

a petition to withdraw and an Anders/Santiago2 brief. We affirm and grant

counsel’s petition to withdraw.

        On the evening of May 26, 2016, Appellant returned to his residence at

327½ North 15th Street in Allentown after being involved in an altercation

with a neighbor. Appellant lived at the residence with his teenage son Trey

Barrett (Trey), his mother Monica Johnson-Young (Johnson-Young), and his

stepfather Leacroft Owen Young (Victim).           Inside the residence, Appellant

slammed doors and caused a commotion. Johnson-Young asked Appellant
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1   18 Pa.C.S. § 2502(c).

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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why he was upset, and Appellant accused Victim of ordering another man to

beat him up.

         At approximately 9:00 p.m., Victim and Johnson-Young were in the

backyard. Appellant and Trey were in the kitchen. Appellant retrieved a knife

and approached the door to the backyard. Trey thought Appellant “was acting

weird,” and he asked Appellant to put down the knife. N.T. Trial, 7/19/17,

49. Appellant would not comply, and Trey tried to take the knife from him.

Trey could not gain control of the knife, and Appellant continued toward the

door. Trey attempted to block Appellant’s path, but Appellant forced his way

into the yard.

         Trey warned Johnson-Young that Appellant was approaching with a

knife.     Johnson-Young stopped Appellant and asked for the knife, but

Appellant denied possessing it. Johnson-Young noticed that Appellant’s “voice

was very funny, not even sound[ing] like him.” Id. at 75. Appellant walked

past Johnson-Young and approached Victim, who sat in a chair. Trey watched

as Appellant stabbed Victim in the chest.3 Johnson-Young did not see the

stabbing, but she heard a noise “like if you . . . would hit somebody . . . with

something.” Id. at 76. In response, Johnson-Young picked up a broomstick,

struck Appellant, and chased him out of the yard.

         Johnson-Young turned her attention to Victim, who rose from his chair

and approached her. Victim said, “He stabbed me,” then fell over. Id. at 81.
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3Trey also testified that Appellant, Victim, and Johnson-Young were the only
people in the yard at the time of the stabbing.

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Johnson-Young caught Victim and Trey called 911. Paramedics arrived and

rushed Victim to the hospital where he died shortly thereafter. An autopsy

revealed the cause of death was a single stab wound below the right clavicle

and above the right breast.

      At 10:35 p.m., police located Appellant, who was passed out on the front

porch of a residence approximately two blocks away from the crime scene.

Officers approached Appellant and detected a strong odor of alcohol on his

person. Tests indicated that Appellant’s blood alcohol concentration was .19%

on the night of the murder. Additional forensic testing revealed the presence

of Victim’s blood on the T-shirt worn by Appellant at the time of his arrest.

      Appellant proceeded to a bench trial at which Trey and Johnson-Young

testified for the Commonwealth.      Appellant testified in his own defense.

According to Appellant, a gang of six or seven men from the neighborhood

assaulted and robbed him shortly before the stabbing. Appellant ran to his

residence to flee from the attackers.      Once inside, Appellant decided he

needed to fix the gate in the backyard. Appellant claimed that he entered the

yard and saw Victim bending down, holding his stomach. Appellant asked

Victim what happened, and Victim “said a boy stabbed him.”           N.T. Trial,

7/20/17 at 97. Appellant testified that he saw the alleged perpetrator exit

through the gate and gave chase, but he could not catch him.

      Following trial, the trial court found Appellant guilty of third-degree

murder.   With the benefit of a presentence investigation report, the court




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sentenced Appellant to twenty to forty years’ imprisonment on August 24,

2017. Appellant did not file post-sentence motions or a notice of appeal.

      On February 6, 2018, Appellant timely filed a pro se petition under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court

appointed current counsel on February 20, 2018. On April 20, 2018, the court

reinstated Appellant’s direct appeal rights and directed Appellant to file a

notice of appeal nunc pro tunc within thirty days.

      Appellant timely filed a notice of appeal nunc pro tunc on May 16, 2018.

On June 12, 2018, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of matters complained of on appeal. Counsel timely filed a

statement of intent to file an Anders/Santiago brief, pursuant to Pa.R.A.P.

1925(c)(4). The court did not file a responsive opinion.

      On August 24, 2018, counsel filed a petition to withdraw and an

Anders/Santiago brief. Counsel included a certificate of service indicating

that he provided Appellant both the withdrawal petition and the brief.

Appellant has not filed a pro se brief or a counseled brief with new, privately-

retained counsel.

      In the Anders/Santiago brief, counsel identifies two issues for

appellate review. Specifically, counsel includes challenges to the sufficiency

of the evidence supporting Appellant’s third-degree murder conviction and the

weight of the evidence supporting the verdict. Anders/Santiago Brief at 7.

      Because counsel has filed a petition to withdraw pursuant to

Anders/Santiago, we must first address counsel’s petition before reviewing

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the merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa. Super. 2007) (en banc).       Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that, after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to Appellant; and (3) advising Appellant that he has the right

to retain private counsel, proceed pro se, or raise additional arguments that

Appellant considers worthy of the court’s attention. See id.

      Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

      (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 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. Only after determining that counsel has satisfied

these technical requirements may this Court “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); accord Commonwealth

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

      Counsel has complied with the procedures for seeking withdrawal by

filing a petition to withdraw, sending Appellant a letter explaining his rights,


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and supplying Appellant with a copy of the Anders/Santiago brief.             See

Goodwin, 928 A.2d at 290.         Moreover, counsel’s Anders/Santiago brief

complies with the requirements of Santiago. Counsel includes a summary of

the relevant factual and procedural history, refers to the portions of the record

that could arguably support Appellant’s claims, and sets forth the conclusion

that the appeal is frivolous. Counsel explains his reasoning and supports his

rationale with citations to the record and pertinent legal authority. Therefore,

counsel has complied with the technical requirements for withdrawal, see

Santiago, 978 A.2d at 361, and we will independently review the record to

determine if any non-frivolous issues are raised. See Flowers, 113 A.3d at

1250.

        In the first issue identified in the Anders/Santiago brief, counsel

discusses a challenge to the sufficiency of the evidence. Anders/Santiago

Brief at 7.    Counsel references Appellant’s trial testimony indicating that

someone else stabbed Victim, but asserts there was sufficient evidence to find

Appellant guilty of third-degree murder. Id. at 10.

        Our standard of review for sufficiency claims is as follows:

        The standard we apply in reviewing the sufficiency of the evidence
        is whether viewing all the evidence admitted at trial in the light
        most favorable to the verdict winner, there is sufficient evidence
        to enable the fact-finder to find every element of the crime beyond
        a reasonable doubt. In applying the above test, we may not weigh
        the evidence and substitute our judgment for the fact-finder. In
        addition, we note that the facts and circumstances established by
        the Commonwealth need not preclude every possibility of
        innocence. Any doubts regarding a defendant’s guilt may be
        resolved by the fact-finder unless the evidence is so weak and


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      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the trier of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (brackets

and citation omitted), appeal denied, 165 A.3d 895 (Pa. 2017).

      To sustain a conviction for third-degree murder, “the Commonwealth

need only prove that the defendant killed another person with malice

aforethought.” Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013)

(citation omitted). “[M]alice comprehends not only a particular ill-will, but . .

. also a wickedness of disposition, hardness of heart, recklessness of

consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured.”          Id. (brackets and citation

omitted). “Moreover, the finder of fact may infer malice and specific intent to

kill based on the defendant’s use of a deadly weapon on a vital part of the

victim’s body.” Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015)

(citation omitted).

      Instantly, the Commonwealth presented evidence that Appellant

believed that Victim had ordered another man to beat him up.           Appellant

retrieved a knife from the kitchen and attempted to enter the yard.         Trey

sensed that Appellant was acting “weird” and unsuccessfully attempted to

disarm Appellant and block his path to the yard. Once Appellant was outside,


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Johnson-Young unsuccessfully attempted to make Appellant relinquish the

knife.     After Appellant bypassed Johnson-Young, Trey watched Appellant

approach Victim and stab him in the chest. Here, there was ample evidence

for the trial court, as the finder of fact, to conclude that Appellant stabbed

Victim and infer malice based on Appellant’s use of deadly weapon on a vital

part of Victim’s body. See Hitcho, 123 A.3d at 746; Tucker, 143 A.3d at

964. Therefore, we agree with counsel’s assessment that a challenge to the

sufficiency of the evidence was frivolous.

         Counsel also identifies a challenge to the weight of the evidence, but

Appellant failed to raise any objection to the weight of the evidence in the trial

court. Therefore, Appellant’s claim is waived. See Pa.R.Crim.P. 607 (stating

that a defendant must first raise a weight claim with the trial court in a motion

for new trial before sentencing or in a post-sentence motion); see also

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding that

the appellant waived a weight of the evidence challenge because the appellate

court has nothing to review when the appellant fails to preserve the claim in

the trial court).

         In sum, we conclude that the claims identified in the Anders/Santiago

brief are frivolous. Moreover, our independent review of the record does not

reveal any additional, non-frivolous issues in this appeal. See Flowers, 113

A.3d at 1249. Accordingly, we grant counsel’s petition to withdraw and affirm

the judgment of sentence.

         Judgment of sentence affirmed. Petition to withdraw granted.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/19




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