J-S46012-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                    v.

JAMES ROBERT HINTON

                         Appellant                     No. 403 MDA 2017


          Appeal from the Judgment of Sentence February 6, 2017
              In the Court of Common Pleas of Adams County
            Criminal Division at No(s): CP-01-CR-0000308-2016


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                           FILED OCTOBER 26, 2017

      James Robert Hinton appeals from the judgment of sentence of two to

four years incarceration imposed following his conviction of one count of

access device fraud.     Jason G. Pudleiner, Esquire, has filed a petition to

withdraw from representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant the petition and affirm.

      The trial court set forth the facts adduced by the Commonwealth at

Appellant’s jury trial in its Pa.R.A.P. 1925(a) opinion.

      On November 19, 2015 at 10:02 P.M., Trooper Christopher
      Ashey of the Pennsylvania State Police was dispatched to the
      Gettysburg Lutheran Home in Adams County, Pennsylvania for a
      report of three separate thefts. Three vehicles parked in the
      Lutheran Home parking lot had been broken into. Several items
      had been stolen including three purses with credit cards inside

* Former Justice specially assigned to the Superior Court.
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      them. One victim reported that her stolen ACNB card was used
      online. On December 7, 2015, another victim reported that her
      stolen Chase Amazon Visa Card was used at the Gettysburg
      Walmart in the amount of $114.01, Gettysburg Sheetz in the
      amount of $41.00, and Fayetteville Rutter's located in Franklin
      County in the amount of $56.85. The victim did not authorize
      any of these transactions. The Walmart and Sheetz stores where
      the victim's credit card was used are located approximately one
      mile from the Lutheran Home traveling straight down Shealer
      Road.

      On December 8, 2015, Trooper Jonathan Wolfe of the
      Pennsylvania State Police contacted the Gettysburg Walmart and
      received surveillance photographs of the transaction in which the
      stolen Chase Amazon Visa Card was used by two men
      purchasing milk and printer cartridges totaling $114.01. This
      transaction occurred on November 19, 2015. A Walmart
      employee identified one of the men from the surveillance
      photographs as Appellant.

      On December 8, 2015, the Gettysburg Sheetz Loss Prevention
      Team Agent provided Trooper Wolfe with still photographs of a
      transaction at Sheetz involving the same stolen Chase Amazon
      Visa Card that was used at the Gettysburg Walmart. The
      photograph showed a green Ford Explorer with Pennsylvania
      Registration HML0357 stopped at the fuel pump. After consulting
      PennDot Records, Trooper Wolfe concluded that the Ford
      Explorer from the Sheetz surveillance photo was registered to
      Appellant. Trooper Wolf identified the man in both the Walmart
      and the Sheetz photographs as Appellant by referring to
      Appellant's Pennsylvania Driver's License photograph. In both
      the Walmart and Sheetz transactions, Appellant used the stolen
      Chase Amazon Visa Card.

      On December 11, 2015, Trooper Wolfe interviewed Appellant at
      his residence, and Appellant admitted that he was the person in
      both the Walmart and Sheetz surveillance photos and that he
      used a credit card for both transactions. Appellant also stated
      that his nephew, Gary Hinton, gave him a credit card to use and
      said that it belonged to his girlfriend.

Trial Court Opinion, 3/21/17, at 1-3.



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      Appellant was convicted by the jury of one count of access device

fraud, and received the aforementioned sentence. Appellant timely appealed

from the denial of his post-sentence motion for reconsideration, and

complied with the order to supply a Pa.R.A.P. 1925(b) statement.           The

matter is now ready for our review. In his Anders brief, Attorney Pudleiner

raised the following issues before concluding that this appeal was wholly

frivolous.

      I.     Whether the lower court abused its discretion in admitting
             evidence of Appellant's prior record that exceeded 10
             years.

      II.    Whether the lower court abused its discretion in not
             granting a new trial after the Commonwealth tainted the
             jury pool by repeatedly claiming Appellant testified to
             something that he did not.

Appellant’s brief at 6.

      Since counsel has filed a petition to withdraw, we must first rule on the

request to withdraw without reviewing the merits of the underlying issues.

Commonwealth v. Blauser, 166 A.3d 428 (Pa.Super. 2017). In order to

withdraw from appellate representation pursuant to           Anders, certain

procedural and substantive requirements must be met.             Procedurally,

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



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private counsel or raise additional arguments that the defendant deems

worthy of the court's attention. See Commonwealth v. Cartrette, 83 A.3d

1030 (Pa.Super. 2013) (en banc).

     Attorney Pudleiner’s petition to withdraw sets forth that he reviewed

the entire record, and concluded that there are no actual or potential non-

frivolous issues. The brief appends a copy of the letter sent to Appellant,

which informed Appellant that he had the right to retain new counsel or

proceed pro se and raise additional arguments on his own behalf. Appellant

was also furnished with a copy of the Anders brief.        Therefore, counsel

complied with the procedural requirements.

     Next, we     examine   whether   counsel’s   Anders    brief   meets the

substantive requirements as set forth by our Supreme Court in Santiago.

The 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.

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

Santiago, supra at 361).

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      The brief summarized the factual and procedural history of this case,

and referred to the portions of the record that fail to support these issues

with citations and discussion of pertinent case law.        Thus, this brief is

compliant with Santiago.

      We now consider the issues raised in the Anders brief. The first issue

challenges the trial court’s decision to admit certain crimes as impeachment

evidence pursuant to Pa.R.E. 609, which states in relevant part:

      (a) In General. For the purpose of attacking the credibility of
      any witness, evidence that the witness has been convicted of a
      crime, whether by verdict or by plea of guilty or nolo contendere,
      must be admitted if it involved dishonesty or false statement.

      (b) Limit on Using the Evidence After 10 Years. This
      subdivision (b) applies if more than 10 years have passed since
      the witness's conviction or release from confinement for it,
      whichever is later. Evidence of the conviction is admissible only
      if:
            (1) its probative value substantially outweighs its
            prejudicial effect; and

            (2) the proponent gives an adverse party reasonable
            written notice of the intent to use it so that the party
            has a fair opportunity to contest its use.

Pa.R.E. 609.

      During a break in the proceedings, Appellant confirmed that he

intended to testify and the parties discussed the admissibility of Appellant’s

crimen falsi convictions in rebuttal.      The Commonwealth proposed to

introduce Appellant’s convictions for: burglary from 1976, two burglaries

from 1978, burglary from 1979, theft by receiving stolen property from



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1980, burglary from 1987, theft by unlawful taking from 2000, burglary from

2004,      and      criminal       conspiracy   to   commit   robbery   in   2004.1   The

Commonwealth noted that, with respect to the 2004 case, “the release from

jail would be within the 10 years.” N.T., 2/6/17, at 74. The trial court asked

if Appellant had anything to add. Id. In response, Appellant did not lodge

any type of objection to this proposal; instead, he simply stated, “[I am]

obviously not stipulating to the admission, but in terms of the jail sentence,

unless we have some sort of proof of when he got out of jail, that was never

discussed before. I don’t have the specific date unless they have some sort

of specific date.” Id. at 75. The parties limited their subsequent discussion

to when Appellant was released from incarceration on the 2004 case. The

trial court then made the following ruling:

        Taking it all into consideration, the factors to be weighed, I’m
        looking at whether the probative value outweighs the prejudicial
        effect or vice versa. The factors to be considered are the age of
        the offenses, the age of the Defendant, the nature of the
        offenses committed. Obviously, anything within that 10-year
        release from custody would be permissible as crimen falsi.

        I think in fairness here the burglaries from back in the ‘70s are
        probably too antiquated and would only serve to prejudice the
        jury. What will be admissible by way of crimen falsi as a result
        of the balancing of the interest here is the crimes committed in
        the 2000s, the theft in 2000, burglary in ’04, and conspiracy to
        commit robbery in ’04.
____________________________________________
1 As to this latter crime, Appellant was actually convicted of conspiracy to
commit burglary.       However, Appellant did not object to the incorrect
recitation to the jury.



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      [APPELLANT]: Understood, Your Honor.

Id. at 75-76. Thus, while Appellant did not stipulate to the convictions, he

made no contemporaneous objection to the ruling and any objection to the

admission of this evidence has been waived. Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      The Anders brief analysis argued that the trial court applied the

incorrect standard, as the court asked “whether the probative value

outweighs the prejudicial effect or vice versa.”    Id.   As noted by counsel,

that test applies only if the conviction is outside of the ten-year window as

defined by Rule 609.       However, the brief outlines that Appellant was

released from parole in 2009 for his 2004 convictions. Therefore, pursuant

to Rule 609(b), the convictions for those crimes were not outside of the ten-

year window and were admissible without any balancing whatsoever. We do

not disagree with this analysis, but the pertinent point with respect to

frivolity, in our view, is that the issues were not preserved for review. The

same holds true for the 2000 conviction.

      Waiver also applies to the second claim discussed in the Anders brief,

i.e., that the prosecutor made improper comments during closing argument.

Specifically, the prosecutor incorrectly argued that Appellant testified that he




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did not own a credit card, while Appellant in truth stated that he used an

Access card for food and had a card that was similar to a debit card.

       The Anders brief analyzes the claim under the prevailing law, and

determines that there was no prejudice. However, Appellant failed to object

to   the     allegedly    improper   statements,   resulting   in   waiver.   See

Commonwealth v. Stafford, 749 A.2d 489, 496, n.5 (Pa.Super. 2000)

(holding that any challenge to allegedly improper comments during closing

arguments was waived due to failure to object).         The trial court could not

sua sponte grant a mistrial, and therefore we agree that this issue was

frivolous.

       Finally, pursuant to Commonwealth v. Flowers, 113 A.3d 1246

(Pa.Super. 2015), we have independently examined the record to determine

if there are any additional, non-frivolous issues. Finding no preserved non-

frivolous issues, we grant counsel’s petition to withdraw and affirm.

       The petition to withdraw of Jason G. Pudleiner, Esquire, is granted.

Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2017



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