J-S88013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

ANTHONY SUTTON,

                        Appellant                    No. 293 EDA 2016


       Appeal from the Judgment of Sentence of December 10, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0001025-2015

BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 07, 2017

     Appellant, Anthony Sutton, appeals from the judgment of sentence

entered on December 10, 2015, as made final by the denial of his post-

sentence motion on January 7 2016.         On this direct appeal, Appellant’s

court-appointed counsel filed both a motion to withdraw as counsel and an

accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386

U.S. 738 (1967).   We conclude that Appellant’s counsel complied with the

procedural requirements necessary     to    withdraw.    Furthermore, after

independently reviewing the record, we conclude that the appeal is wholly

frivolous. We, therefore, grant counsel’s motion to withdraw and affirm the

judgment of sentence.




* Retired Senior Judge assigned to the Superior Court
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        The factual background and procedural history of this case are as

follows. On April 14, 2014, S.J. was standing outside of his grandmother’s

residence when he witnessed Appellant fire several shots out the window of

a vehicle driving down the street. At least one bullet grazed S.J.

        On February 4, 2015, the Commonwealth charged Appellant via

criminal information with 29 offenses, including inter alia, possession of a

firearm by a prohibited person,1 carrying a firearm without a license,2 and

carrying a firearm on the streets of Philadelphia.3      On October 7, 2015,

Appellant was convicted of those three offenses.      On December 10, 2015,

the trial court sentenced Appellant to an aggregate term of 11 to 22 years’

imprisonment.      Appellant filed a timely post-sentence motion which was

denied on January 7, 2016. This timely appeal followed.4

        Appellant’s counsel raises two issues in her Anders brief:

        [1. Was there sufficient evidence to convict Appellant of
        possession of a firearm by a prohibited person, carrying a
        firearm without a license, and carrying a firearm on the streets
        of Philadelphia?

        2. Was Appellant’s sentence manifestly excessive?]

See generally Anders Brief at 11-16.


1
    18 Pa.C.S.A. § 6105(a)(1).
2
    18 Pa.C.S.A. § 6106(a)(1).
3
    18 Pa.C.S.A. § 6108.
4
  Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.


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     Before reviewing the merits of this appeal, we must first determine

whether counsel has fulfilled the necessary procedural requirements for

withdrawing as counsel. See Commonwealth v. Flowers, 113 A.3d 1246,

1248-1249 (Pa. Super. 2015) (citation omitted).             To withdraw under

Anders,     court-appointed   counsel      must   satisfy    certain   technical

requirements. “First, counsel must petition the court for leave to withdraw

and state that after making a conscientious examination of the record, [s]he

has determined that the appeal is frivolous.” Commonwealth v. Bynum-

Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016), quoting Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel:

     (1) provide[s] a summary of the procedural history and facts,
     with citations to the record; (2) refer[s] to anything in the record
     that counsel believes arguably supports the appeal; (3) set[s]
     forth counsel’s conclusion that the appeal is frivolous; and (4)
     state[s] counsel’s reasons for concluding that the appeal is
     frivolous.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015),

quoting Santiago, 978 A.2d at 361.

     Finally, counsel must furnish a copy of the Anders brief to her client

and “advise[] him of his right to retain new counsel, proceed pro se[,] or

raise any additional points that he deems worthy of the court’s attention,

and attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).


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      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting

McClendon, 434 A.2d at 1187.       It is only when both the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw. In the case at bar, counsel has met all of the above procedural

obligations. We now turn to whether this appeal is wholly frivolous.5

      The first issue raised in counsel’s Anders brief is whether there was

sufficient evidence to convict Appellant of possession of a firearm by a

prohibited person, carrying a firearm without a license, and carrying a

firearm on the streets of Philadelphia. “Whether sufficient evidence exists to

support the verdict is a question of law; our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Walls, 144 A.3d

926, 931 (Pa. Super. 2016) (citation omitted).      “In assessing Appellant’s

sufficiency challenge, we must determine whether, viewing the evidence in

the light most favorable to the Commonwealth as verdict winner, together

with all reasonable inferences therefrom, the trier of fact could have found

that the Commonwealth proved [each] element of the crime beyond a

reasonable doubt.”   Commonwealth v. Ansell, 143 A.3d 944, 949 (Pa.

Super. 2016) (citation omitted).    “The evidence need not preclude every

5
  Appellant filed a response to counsel’s Anders brief; however, he did not
raise any issues for our consideration in that response.


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possibility of innocence and the fact-finder is free to believe all, part, or none

of the evidence presented.” Commonwealth v. Ford, 141 A.3d 547, 552

(Pa. Super. 2016) (citation omitted).

      In order to convict Appellant of possession of a firearm by a prohibited

person, the Commonwealth was required to prove that: (a) Appellant

possessed a firearm and (b) he was disqualified from possessing a firearm

under section 6105(b) or (c). See 18 Pa.C.S.A. § 6105(a)(1). In this case,

S.J. testified that Appellant possessed a firearm in a vehicle which drove by

his grandmother’s residence.         Appellant also conceded that he was

disqualified from possessing a firearm. Thus, any argument that there was

insufficient evidence to convict Appellant of possession of a firearm by a

prohibited person is wholly frivolous.

      In order to convict Appellant of carrying a firearm without a license,

the Commonwealth was required to prove that: (a) Appellant possessed a

firearm, (b) he did not possess a valid license to carry a firearm, and (c) the

firearm was carried in a vehicle or concealed about his person outside his

place of abode or fixed place of business. See Commonwealth v. Parker,

847 A.2d 745, 750 (Pa. Super. 2004) (citation omitted).         As noted above,

S.J. testified that Appellant possessed a firearm in a vehicle which drove by

his grandmother’s residence.       Appellant also conceded that he did not

possess a license to carry firearms.       Thus, any argument that there was




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insufficient evidence to convict Appellant of carrying a firearm without a

license is wholly frivolous.

      In order to convict Appellant of carrying a firearm on the streets of

Philadelphia, the Commonwealth was required prove that: (a) Appellant

possessed a firearm on the streets of Philadelphia and (b) he did not possess

a valid license to carry a firearm.     See 18 Pa.C.S.A. § 6108.       As noted

above, S.J. testified that Appellant possessed a firearm in a vehicle which

drove by his grandmother’s residence on the public streets of Philadelphia.

Appellant also conceded that he did not possess a license to carry firearms.

Thus, any argument that there was insufficient evidence to convict Appellant

of carrying a firearm on the streets of Philadelphia is wholly frivolous.

      The second issue included in counsel’s Anders brief is whether

Appellant’s sentence was manifestly excessive.       This issue challenges the

discretionary aspects of his sentence.      See Commonwealth v. Haynes,

125 A.3d 800, 806 (Pa. Super. 2015), appeal denied, 140 A.3d 12 (Pa.

2016). Pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.           See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      [w]e conduct a four-part analysis to determine: (1) whether
      [the] appellant has filed a timely notice of appeal, see Pa.R.A.P.


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      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 [the] 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).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted). Appellant filed a timely notice of appeal and preserved the issue

in his post-sentence motion.          Although counsel failed to include a Rule

2119(f) statement in her Anders brief, we nonetheless turn to whether

Appellant has raised a substantial question. Cf. Commonwealth v. Lilley,

978 A.2d 995, 998 (Pa. Super. 2009) (citation omitted) (overlooking

deficient Rule 2119(f) statement because counsel filed an Anders brief).

      “In order to establish a substantial question, the appellant must show

actions by the trial court inconsistent with the Sentencing Code or contrary

to   the   fundamental        norms     underlying   the       sentencing   process.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted). “The determination of whether a particular case raises a

substantial   question   is   to   be   evaluated    on    a   case-by-case   basis.”

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),

appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).

      Counsel contends that this case raises a substantial question because

Appellant filed a post-sentence motion.        See Anders Brief at 15.        Merely

filing a post-sentence motion, however, does not raise a substantial

question. Instead, as noted above, preserving a discretionary aspects claim


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in a post-sentence motion is merely a prerequisite to determining if a

substantial question is presented.             See Leatherby, 116 A.3d at 83.

Moreover, a bald claim that a sentence is excessive does not raise a

substantial question. Haynes, 125 A.3d at 807-808. Therefore, Appellant’s

discretionary   aspects   claim   does    not     raise   a    substantial   question.

Accordingly, any argument that Appellant’s sentence is manifestly excessive

is wholly frivolous.


      In sum, we conclude that both issues raised in counsel’s Anders brief

are wholly frivolous. Furthermore, after an independent review of the entire

record, we conclude that no other issue of arguable merit exists. Therefore,

we grant counsel’s request to withdraw. Having determined that the issues

raised on appeal are frivolous, we affirm the judgment of sentence.

      Motion to withdraw as counsel granted.                  Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/7/2017




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