J-S04041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHALID A. MUHAMMAD                         :
                                               :
                       Appellant               :   No. 1381 MDA 2018

         Appeal from the Judgment of Sentence Entered July 20, 2018
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0004247-2016


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED FEBRUARY 19, 2019

       Appellant Khalid A. Muhammad appeals from the judgment of sentence

entered in the Court of Common Pleas of Berks County on July 20, 2018,

following a non-jury trial.1,2 Appellant’s counsel also has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), and its Pennsylvania

counterpart Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009)

(hereinafter “Anders Brief”) together with a Petition to Withdraw as Counsel

and a letter advising Appellant of his rights pursuant to Commonwealth v.




____________________________________________


1Appellant was tried along with his sister, who is not a party to this appeal.
2Appellant completed a written Jury Trial Waiver Colloquy and Waiver of Jury
Trial Form. Appellant also was questioned and waived his right to a jury trial
on the record prior to the commencement of trial. N.T. Trial, 9/10/18, at 4-
8.


____________________________________
* Former Justice specially assigned to the Superior Court.
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Millisock, 873 A.2d 748 (Pa.Super. 2005).3 Following our review, we grant

counsel’s petition to withdraw and affirm the judgment of sentence.

       The record reveals that in January of 2014, a Custody Order was entered

between Appellant and A.R., the mother of his child, wherein the parties were

to share legal custody, A.R. was granted primary physical custody of their

minor child P.M., and Appellant received weekend visitation. N.T. Trial,

6/15/18, at 73-75.4 In March of 2015, A.R. was incarcerated, and Appellant

received sole custody of the child at his home in Philadelphia until her release

in June of 2016. Id. at 75-76. Upon A.R.’s parole to a halfway house in

Reading, she contacted Appellant to arrange a visitation with P.M. on a

weekend. Id. at 76-78. After A.R. was released and had a home plan, she

contacted Appellant on a Wednesday to arrange to pick up her son on the

ensuing weekend. Id. at 77-78. Appellant did not ask A.R. where she was

taking the child, and she did not tell Appellant her address. Id. at 95-96.

       When A.R. brought three-year-old P.M. back to her house, she noticed

bruises and hand marks which extended from the back of his knees to the

middle of his back. Angry and upset, A.R. immediately called Appellant. Id.

____________________________________________


3  Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.
4 The child was born in April of 2013. To protect the minor child’s identity,

throughout this memorandum we use the mother’s and child’s initials, as well
as the initials of mother’s older child who testified at trial, and we have
replaced other identifying proper names with generic labels.



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at 78-79. While Appellant initially stated the bruises were the result of a hot

bath, Appellant eventually admitted to spanking the child as punishment for

his leaving the water running after he had washed his hands when he used

the bathroom in the middle of the night. Appellant told A.R. he had not hit

the child hard and that the child did not cry but rather was “taking it brave.”

Id. at 80. A.R. informed Appellant that she would be reporting the abuse and

that she would not be returning the child to his custody. Id. at 80.

      Due to A.R.’s refusal to return the child or communicate with Appellant

regarding him, Appellant testified he filed a report with the Philadelphia police

and sought advice from his “best friend,” an unnamed police officer, and his

former attorney who told him the January 7, 2014, Custody Order was invalid

because six months had passed and A.R. had been incarcerated since it was

entered. Counsel advised Appellant to go to seek the help of police in Reading

and retrieve the child. Id. at 137-139. Appellant asked his sister T.M. to help

him. Id. at 137-140. T.M. and an unidentified woman picked up Appellant

on the Morning of Monday, August 15, 2016, and headed to Berks County.

      Upon arrival in Reading, Appellant visited the courthouse where he was

informed he would need to contact the Reading City Police. There, he learned

a report could not be filed as the matter involved custody, not a kidnapping,

and Appellant called 911. Id. at 140. The police referred Appellant to the

halfway house where A.R. had been staying and/or to the state probation




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office in Reading, the latter of which provided Appellant with the address A.R.

had listed. Id. at 140-141.

       On August 15, 2016, which was within a week of A.R.’s conversation

with   Appellant,   A.R.’s   then   seventeen-year-old   daughter   L.D-R.   was

babysitting P.M. at A.R.’s residence while A.R. was at work. Id. at 12-14. At

approximately 2:30 p.m., while L.D-R. was out front of the home with the

child, an unknown woman inquired about where to buy cigarettes, and L.D-R.

referred her to a store around the corner. Id. at 14-15. Shortly thereafter, a

silver Kia pulled up in front of the house. Appellant exited the passenger side,

approached P.M., picked him up, and attempted to place him in the car. Id.

at 15-16.

       A struggle ensued between L.D-R, Appellant, his sister, and the

unidentified woman who previously inquired about cigarettes. The fray was

captured on video surveillance.      Eventually, Appellant and the two women

were able to get P.M. into the Kia, and when L.D-R. opened a back door to

retrieve the child, the unidentified woman pulled her into the back seat. The

Kia sped away, leaving Appellant behind. Id. at 17-24. P.M. sustained minor

bruising in the struggle. Id. at 88-91.

       L.D-R. rolled down the windows and shouted out to the public for help

because she and the child were being kidnapped. Appellant’s sister and the

unidentified woman, who was seated next to her in the back seat, told L.D-R.

she would not be returned to her mother. Id. at 25-26. After several hours,


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the Kia stopped at a train station and met another vehicle. P.M. was removed

from the Kia and Appellant’s mother took the child’s place therein. Id. at 26-

29. L.D-R. was informed she was in Philadelphia and was taken to a store

where Appellant’s mother bought her a shirt and sandals, as the teenager was

barefoot and her shirt had been ripped in the struggle, and threw away her

ripped shirt. Id. at 31-32.

      The group proceeded to a Greyhound station, where Appellant’s mother

bought L.D-R. a bus ticket back to Reading. At the bus station, the teenager

realized she was, in fact, in Philadelphia. Id. at 32. Alone and upset at the

bus station, she used a stranger's phone to contact A.R. who instructed her to

wait for the police.   Frightened, L.D-R. boarded a Greyhound bus back to

Reading. Id. at 33. When the bus stopped in Norristown, police escorted the

teenager to the police station, where she was met by Reading police officers.

Id. at 33-34. L.D-R. had bruises on her forearms, chest, and one on her back.

Id. at 35-36.

      The next day, on August 16, 2016, A.R. received a call from Appellant’s

mother, who stated that P.M. could be picked up on Broad Street in

Philadelphia, and several Reading police officers travelled with A.R. to

Philadelphia. Id. at 86. Several attempts to reach Appellant’s mother by

telephone and text went unanswered. Id. at 87. Eventually, A.R. was able

to retrieve the child at 8:30 p.m. Id. at 87-88. P.M. had bruising on his body




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from old injuries as well as additional injuries including a bump on his forehead

and bruising on his back. Id. at 88-90.

       Following the bench trial, on June 15, 2018, Appellant was convicted of

Conspiracy to Commit Unlawful Restraint, two counts of Unlawful Restraint,

Conspiracy to Commit False Imprisonment, Interference with Custody of

Children, Conspiracy to Commit Interference with Custody and two counts of

False Imprisonment.5 Appellant was sentenced on July 20, 2018, to two (2)

concurrent sentences of one (1) year to four (4) years in prison, a consecutive

prison sentence of nine (9) months to thirty-six (36) months, a consecutive

sentence of five (5) years of special probation and another sentence of five

(5) years of special probation to run concurrently to the other.

       Appellant filed a timely notice of appeal on August 17, 2018, and on that

same date the trial court entered its Order directing Appellant to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On

September 7, 2018, Appellant filed a counselled “Notice of Intention to File

Anders/McClendon Brief in Lieu of Concise Statement of Appeal pursuant to

1925(c)(4).”      Notwithstanding the document’s title, it is the functional

equivalent of a concise statement, for therein Appellant presented the

following claims to be raised on appeal:

       1. The trial court erred in finding [ ] Appellant guilty because the
          verdict was against the weight of the evidence.
____________________________________________


5 18 Pa.C.S.A. §§ 903(a)(1)-2902(a)(1); 2902(a)(1); 903(a)(1)-2903(a);
2904(a); 903(a)(1)-2904(a); and 2903(a), respectively,

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      2. The trial court erred in finding [ ] Appellant guilty because the
         verdict was against the sufficiency of the evidence.

See Statement, filed 9/7/18.

      On September 14, 2018, the trial court filed its Statement in Lieu of

Opinion” wherein it indicated that after a review of the record, it concurred

with counsel’s determination that no meritorious issues exist for direct appeal.

      Thereafter, counsel initially filed only an Anders Brief to which he had

attached a letter advising Appellant of his rights pursuant to Commonwealth

v. Millisock, 873 A.2d 748 (Pa.Super. 2005). In a Per Curiam Order filed on

December 11, 2018, this Court directed counsel additionally to file a petition

to withdraw as counsel and provide Appellant with a copy of the petition.

Counsel complied and filed the petition which contains proof of service on

Appellant on January 2, 2019. The Commonwealth filed an appellate brief on

January 8, 2019.

      The Anders Brief contains the following “Statement of the Questions

Involved”:

      1.     Was the evidence adduced at trial insufficient to support the
             jury’s [sic] verdict?

      2.     Was the verdict of the trial court below against the weight
             of the evidence?

      3.     Should ineffective assistance of counsel be an issue raised at
             this point in the case?

Anders Brief at 5.




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      Prior to addressing any question raised on appeal, we must first resolve

counsel's petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc); see also Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen faced with

a purported Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”). There

are procedural and briefing requirements imposed upon an attorney who

seeks to withdraw on appeal pursuant to which 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.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders Brief 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 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, supra at 178-79, 978 A.2d at 361. Counsel also must provide the

appellant with a copy of the Anders Brief, together with a letter that advises



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the appellant of his or her right to “(1) retain new counsel to pursue the

appeal; (2) 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 brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290

(Pa.Super. 2007).

      Once counsel has satisfied the above requirements, this Court must

undertake an independent examination of the record to determine whether

the appeal is wholly frivolous. See Commonwealth v. Yorgey, 188 A.3d

1190, 1195 (Pa.Super. 2018) (en banc); see also Commonwealth v.

Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015) (holding that “this Court

must conduct an independent review of the record to discern if there are any

additional, non-frivolous issues overlooked by counsel.”).

      Herein, as previously stated, counsel first filed an Anders Brief on

December 6, 2018, and pursuant to this Court’s Order, his Petition to

Withdraw as Counsel followed on January 2, 2019. In his petition to withdraw,

counsel states that after a conscientious examination of the record and

communication with Appellant, he has determined that an appeal herein is

wholly frivolous. See Petition to Withdraw as Counsel at ¶¶ 4-6.       Counsel

further explains that he notified Appellant of the withdrawal request and

forwarded a copy of the Anders Brief to Appellant together with a letter


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explaining his right to proceed pro se or with new, privately-retained counsel

to raise any additional points or arguments that Appellant believed had merit.

See id. at ¶¶ 7-8; see also attached Letter to Appellant. Counsel indicates

that a copy of the Petition to Withdraw as Counsel and notice letter were

served on Appellant, and these documents correctly inform Appellant of her

rights.

      In the Anders Brief, counsel provides a summary of the facts and

procedural history of the case with citations to the record, refers to evidence

of record that might arguably support the issues raised on appeal, provides

citations to relevant case law, and states his reasoning and conclusion that

the appeal is wholly frivolous. See Anders Brief at 5-21. Accordingly, counsel

has complied with all of the technical requirements of Anders and Santiago.

As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we proceed to examine the issues of arguable

merit identified in the Anders Brief.

      Therein, counsel first challenges whether the evidence had been

sufficient to support the verdict. In considering this claim, we bear in mind

the following:

      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[’s].
      In addition, we note that the facts and circumstances established
      by the Commonwealth need not preclude every possibility of

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     innocence. Any doubts regarding a defendant’s guilt may be
     resolved by the fact-finder unless the evidence is so weak and
     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.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011).

     Prior to addressing the merits of this issue, we first must determine

whether it has been properly preserved for appellate review. As this Court

has explained, “[i]n order to preserve a challenge to the sufficiency of the

evidence on appeal, an appellant’s Rule 1925(b) statement must state with

specificity the element or elements upon which the appellant alleges that the

evidence was insufficient.” Commonwealth v. Freeman, 128 A.3d 1231,

1248 (Pa.Super. 2015). “Such specificity is of particular importance in cases

where, as here, the [a]ppellant was convicted of multiple crimes each of which

contains numerous elements that the Commonwealth must prove beyond a

reasonable doubt.” Id. (quoting Commonwealth v. Gibbs, 981 A.2d 274,

281 (Pa.Super. 2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010).

     In Freeman, the appellant’s concise statement alleged, “the evidence

at trial was insufficient to sustain a conviction of the crimes charged.”

Freeman, 128 A.3d at 1247-48. This Court explained that the statement was

“far too vague to warrant meaningful appellate review” as it did not specify

which elements of the crime or even which crimes the Commonwealth failed


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to prove beyond a reasonable doubt. Id. at 1248; see also Pa.R.A.P.

1925(b)(4)(ii) & (vii) (providing, respectively, that “[t]he Statement shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge[,]”

and that “[i]ssues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph [ ] are waived.” (emphasis

added).

          Similarly, Appellant’s concise statement herein simply asserted “[t]he

trial court erred in finding [ ] Appellant guilty because the verdict was against

the sufficiency of the evidence.” Appellant was convicted of eight counts, and

each crime contains multiple elements; therefore, Appellant waived this issue

on appeal for lack of sufficient specificity in his concise statement.

          Nevertheless, even if we were to deem this issue as having been

properly preserved, we would determine that it would not entitle Appellant to

relief.     See Yorgey, supra (stating that this Court must undertake an

independent examination of the record to determine whether the appeal is

wholly frivolous). The argument in support of this claim in the Anders Brief

highlights the ways in which the verdict reflects the trial court’s discrediting

of Appellant’s testimony in favor of that presented by the Commonwealth

witnesses. Anders Brief at 12-16.

          Prior to sentencing, the trial court indicated that it “considered much”

including “the sentencing guidelines[, ] the briefs and argument made by


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counsel here today as well as the recommendations of counsel” and

“prominently the trial testimony which [it saw personally].” N.T. Sentencing,

7/20/18, at 32.     The trial court stressed that with regard to the evidence

presented at trial, “the most troubling was the video during which no words

were spoken. . . . The quality of this video was pretty much as good as you

find in these kinds of situations, and it was very disturbing. . . . This is not

something that someone who believes that they have a Custody Order in their

favor or a custody practice in their favor would do. So that can only lead me

to conclude that [Appellant] was well aware of the fact that what he was doing

was unlawful and wrong.” Id. at 32-33 The trial court further remarked that

that it took into account and “frankly, rejected the testimony of [Appellant] at

trial” as it defied “all possible credibility.” Id. at 33.

      It is well-established that “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. Kearney, 92

A.3d 51, 64 (Pa.Super. 2014) (citation omitted), appeal denied, 627 Pa. 763,

101 A.3d 51 (2014); see also Commonwealth v. Furness, 153 A.3d 397,

401, 404 (Pa.Super. 2016), appeal denied, 642 Pa. 554, 170 A.3d 1034

(2017) (stating that assessments of credibility and conflicts in the evidence

are for the fact-finder to resolve, and that this Court is not permitted to

reexamine credibility determinations or substitute our judgment for that of

the fact-finder). Accordingly, the trial court, as the finder of fact, was entitled


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to discredit the testimony of Appellant and to weigh any purported conflicts in

the evidence.

      The Anders Brief next argues the evidence was against the weight of

the evidence. A challenge to the weight of the evidence must first be raised

at the trial level “(1) orally, on the record, at any time before sentencing; (2)

by written motion at any time before sentencing; or (3) in a post-sentence

motion.” In re J.B., 630 Pa. 124, 106 A.3d 76, 97 (2014) (citation omitted).

Appellant failed properly to preserve his weight of the evidence claim by

raising the issue before the trial court as required; therefore, this claim also

is waived. Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa.Super. 2017),

see also Pa.R.Crim.P. 607.

       Finally, counsel raises a claim that Appellant's trial counsel was

ineffective. Anders Brief at 19.     As a general rule, claims of ineffective

assistance of trial counsel should be presented in a collateral proceeding.

Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). However, the

Supreme Court of Pennsylvania established an exception to the rule it

announced in Grant. In Commonwealth v. Bomar, 573 Pa. 426, 466, 826

A.2d 831, 845 (2003), the Supreme Court held that claims of ineffectiveness

may be heard on direct appeal, where the claims were raised before the trial

court, and a record was developed. Bomar, 573 Pa. at 466, 826 A.2d at 845.

More recently, the Supreme Court clarified that

      where the defendant seeks to litigate multiple or prolix claims of
      counsel ineffectiveness, including non-record-based claims, on

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      post-verdict motions and direct appeal, we repose discretion in
      the trial courts to entertain such claims, but only if (1) there is
      good cause shown, and (2) the unitary review so indulged is
      preceded by the defendant's 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.

Commonwealth v. Holmes, 621 Pa. 595, 598–99, 79 A.3d 562, 564 (2013)

(footnote omitted).

       Herein, the trial court did not conduct an evidentiary hearing or develop

a record; therefore, Appellant’s claims of ineffective assistance of counsel are

denied without prejudice to Appellant’s proper presentation of them in a timely

filed, procedurally compliant PCRA petition.

      After examining the issues contained in the Anders Brief, we concur

with counsel’s assessment that the appeal is wholly frivolous. “Furthermore,

after conducting a full examination of all the proceedings as required pursuant

to Anders, we discern no non-frivolous issues to be raised on appeal.”

Yorgey, 188 A.3d at 1195. Thus, we grant counsel’s petition to withdraw and

affirm Appellant’s judgment of sentence.




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Petition to withdraw as counsel granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2019




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