J-S54006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

AKZAVIER ALI CARRINGTON

                            Appellant                      No. 397 MDA 2014


            Appeal from the Judgment of Sentence January 31, 2014
                 In the Court of Common Pleas of Mifflin County
              Criminal Division at No(s): CP-44-CR-0000168-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                             FILED NOVEMBER 18, 2014

        Akzavier Ali Carrington appeals from the judgment of sentence

imposed in the Court of Common Pleas of Mifflin County after a jury found

him guilty of two counts each of robbery1 and conspiracy,2 and one count

each of terroristic threats3 and theft by unlawful taking, all relating to the

robbery of a Sunoco gas station.4              Counsel has petitioned this Court to

withdraw his representation of Carrington pursuant to Anders, McClendon


____________________________________________


1
    18 Pa.C.S.A. § 3701(a)(1)(ii) and (a)(1)(v).
2
    18 Pa.C.S.A. § 903; 18 Pa.C.S.A. § 3701(a)(1)(ii); 18 Pa.C.S.A. § 3921(a).
3
    18 Pa.C.S.A. § 2706(a)(1).
4
    18 Pa.C.S.A. § 3921(a).
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and Santiago.5 Upon review, we find Carrington’s sentence to be illegal and

remand the case to the trial court for resentencing.      Counsel’s request to

withdraw is denied.

       On November 20, 2013, Carrington was convicted of the above crimes

and, on January 31, 2014, he was sentenced to an aggregate term of five to

ten years’ imprisonment. Carrington did not file post-sentence motions and,

on February 24, 2014, filed a notice of appeal. Counsel seeks to withdraw

and has filed an Anders brief.

       When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.          Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008). In order to withdraw pursuant to Anders and

McClendon, counsel must: 1) petition the Court for leave to withdraw,

certifying that after a thorough review of the record, counsel has concluded

the issues to be raised are wholly frivolous; 2) file a brief referring to

anything in the record that might arguably support an appeal; and 3) furnish

a copy of the brief to the appellant and advise him of his right to obtain new

counsel or file a pro se brief to raise any additional points that the appellant

deems worthy of review.         Commonwealth v. Hernandez, 783 A.2d 784,

____________________________________________


5
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).



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786 (Pa. Super. 2001).         In Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009), the Pennsylvania Supreme Court held that, in order to withdraw

under Anders, counsel must also state his reasons for concluding his client’s

appeal is frivolous.

       Instantly, counsel’s petition states that he has made an examination of

the record and concluded the appeal is wholly frivolous. Counsel indicates

that he supplied Carrington with a copy of the brief and a letter explaining

Carrington’s right to proceed pro se,6 or with newly-retained counsel, and to

raise any other issues he believes might have merit.            Counsel also has

submitted a brief in which he repeats his assertion that there are no non-

frivolous issues to be raised.             Accordingly, counsel has substantially

complied with the procedural requirements for withdrawal. We now conduct

our own review of the issues raised in the Anders brief.

       Counsel addresses the following issues in his Anders brief:

       1.     Whether the trial court erred in denying Carrington’s
              motion for change of venire or venue.

       2.     Whether the evidence was sufficient to sustain Carrington’s
              convictions.

       3.     Whether the trial court abused its discretion in imposing a
              an aggregate sentence of five to ten years.



____________________________________________


6
  Carrington has not submitted any additional or supplemental filings to this
Court. Additionally, the Commonwealth has indicated that it will not be filing
a brief in this matter.



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      Carrington first claims that the trial court erred in denying his motion

for change of venue or venire. Pennsylvania Rule of Criminal Procedure 584

governs requests for changes of venue and provides as follows:

      (A) All motions for change of venue or for change of venire shall
      be made to the court in which the case is currently pending.
      Venue or venire may be changed by that court when it is
      determined after hearing that a fair and impartial trial cannot
      otherwise be had in the county where the case is currently
      pending.

Pa.R.Crim.P. 584(A). A trial court’s decision on motions for change of venue

or venire rests within the sound discretion of the trial judge, whose ruling

will not be disturbed on appeal absent an abuse of that discretion.

Commonwealth v. Brookins, 10 A.3d 1251, 1258 (Pa. Super. 2010). “In

reviewing the trial court’s decision, our inquiry must focus upon whether any

juror formed a fixed opinion of the defendant’s guilt or innocence as a result

of the pre-trial publicity.” Commonwealth v. Drumheller, 808 A.2d 893,

902 (Pa. Super. 2002).

      A change in venue becomes necessary when the trial court
      concludes that a fair and impartial jury cannot be selected in the
      county in which the crime occurred. Normally, one who claims
      that he has been denied a fair trial because of pretrial publicity
      must show actual prejudice in the empanelling of the jury. In
      certain cases, however, pretrial publicity can be so pervasive or
      inflammatory that the defendant need not prove actual juror
      prejudice. Pretrial prejudice is presumed if: (1) the publicity is
      sensational, inflammatory, and slanted toward conviction rather
      than factual and objective; (2) the publicity reveals the
      defendant’s prior criminal record, or if it refers to confessions,
      admissions or reenactments of the crime by the accused; and
      (3) the publicity is derived from police and prosecuting officer
      reports. Even where pre-trial prejudice is presumed, a change
      of venue or venire is not warranted unless the defendant also

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      shows that the pre-trial publicity was so extensive, sustained,
      and pervasive that the community must be deemed to have
      been saturated with it, and that there was insufficient time
      between the publicity and the trial for any prejudice to have
      dissipated.

Id. (internal citations, brackets and quotation marks omitted).

      Here, Carrington filed an omnibus pre-trial motion in which he

requested a change of venue or venire due to allegedly “extensive,

inflammatory, sensational and highly inculpatory publicity about this incident

and the arrest of [Carrington.]” Omnibus Pre-Trial Motion, 7/26/13, at ¶ 5.

The court held a hearing on Carrington’s motion on October 9, 2013, at

which a writer/newsreader from a local radio station testified that she

recalled broadcasting news of a police press release regarding the robbery

approximately ten times over two stations (one FM and one AM). N.T. Pre-

Trial Motions Hearing, 10/9/13, at 4. Carrington also presented four articles

about the robbery from the website of the Lewistown Sentinel.        Three of

those articles were accompanied by a photograph of Carrington.          While

counsel conceded that none of the newspaper articles or other publicity

surrounding the case was sensational, inflammatory or slanted, or referred

to any prior record or confession, he claimed that Carrington was the sole

alleged perpetrator whose name and photograph were “highlighted” in the

articles. Id. at 13.

      Following the hearing, the trial court held Carrington’s motion in

abeyance pending jury selection, at which time counsel could question the

venirepersons in an attempt to determine their actual knowledge of any


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pretrial publicity.   During voir dire, Carrington’s counsel informed the

members of the panel that the case involved the Sunoco robbery and asked

if any of them recalled reading about the incident, to which eleven of them

responded in the affirmative.      However, when asked if any of them had

formed an opinion as to what had occurred, none said they had.

      Based upon the foregoing, we cannot conclude that the pre-trial

publicity surrounding Carrington’s case was so “extensive, sustained, and

pervasive that the community must be deemed to have been saturated with

it,” Drumheller, supra, or that, as a result, the jury pool was prejudiced

over one year after the incident occurred. Rather, those jurors who recalled

reading or hearing about the robbery all indicated that they had not formed

an opinion regarding Carrington’s guilt. Accordingly, the trial court did not

abuse its discretion by denying Carrington’s motion for change of venue or

venire.

      Carrington next challenges the sufficiency of the evidence.                    In

reviewing a challenge to the sufficiency of the evidence, 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 each and every element of

the   crimes   charged      was   established     beyond    a     reasonable   doubt.

Commonwealth v. McDonough, 96 A.3d 1067, 1068-69 (Pa. Super.

2014).




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        Here, Carrington was convicted of robbery – threat of immediate

serious injury,7 robbery – by force,8 terroristic threats,9 theft by unlawful

taking10 and conspiracy11 – robbery and theft by unlawful taking. At trial,



____________________________________________


7
    Robbery – threat of immediate serious bodily injury is defined as follows:

        (1) A person is guilty of robbery if, in the course of committing a
        theft, he:

            ...

           (ii) threatens another with or intentionally puts him in fear of
        immediate serious bodily injury[.]

18 Pa.C.S.A. § 3701(a)(1)(ii). “Serious bodily injury” is defined as “[b]odily
injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S.A. § 2301.
8
  A person commits robbery by force if, “in the course of committing a theft,
he . . . physically takes or removes property from the person of another by
force however slight[.]” 18 Pa.C.S.A. § 3701(a)(1)(v).
9
  A person commits the crime of terroristic threats if the he “communicates,
either directly or indirectly, a threat to . . . commit any crime of violence
with intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(a)(1).
10
  A person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, movable property of another with intent to deprive him thereof.
18 Pa.C.S.A. § 3921(a).
11
     Criminal conspiracy is defined as follows:

        (a) Definition of conspiracy. --A person is guilty of conspiracy
        with another person or persons to commit a crime if with the
        intent of promoting or facilitating its commission he:

(Footnote Continued Next Page)


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the Commonwealth presented the testimony of Amanda Hocker, the clerk at

the Sunoco station at the time of the robbery. Hocker testified that, on the

night in question, two men dressed in black clothing, covering both their

bodies and faces, entered the store while she was mopping the floor. One of

the men went to the rear of the store, while the other approached the

counter with what appeared to be a gun.           The man with the gun called

Hocker a “bitch” and demanded that she put money from the register in a

bag. Hocker testified that, after she gave the man the money, he led her to

the back of the store and told her to get down on the floor. He also grabbed

her arm and pulled her down to the floor.         Hocker testified that she was

afraid that she would be shot or killed. The men finally fled the store with

the bag of money. The store manager later testified that the men had stolen

$72.00. Hocker was unable to identify the men, other than to say that the

gunman had brown eyes.

      Andrew Hoy also testified at trial. He testified that, approximately a

week prior to the robbery, Carrington proposed that Hoy commit a robbery

                       _______________________
(Footnote Continued)

        (1) agrees with such other person or persons that they or one
      or more of them will engage in conduct which constitutes such
      crime or an attempt or solicitation to commit such crime; or

        (2) agrees to aid such other person or persons in the planning
      or commission of such crime or of an attempt or solicitation to
      commit such crime.

18 Pa.C.S.A. § 903(a).



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with him. Hoy agreed. On the day of the robbery, Carrington, Hoy and a

third   individual   named      Charles    Zeiders   met     at   Carrington’s   home.

Carrington and Hoy changed into black clothing, putting shirts over their

faces as masks. A week earlier, they had stolen a BB gun from Wal-Mart,

which Carrington carried as they left the house. The three walked to a creek

near the Sunoco, at which point Carrington and Hoy “put the mask on over

our faces – our shirt over our face, our mask, put our hoodies up, and

Charles went up and rode around the Sunoco to see if anybody was there.”

N.T. Trial, 11/20/13, at 42.

        Hoy testified that he and Carrington entered the store. Hoy went to

the rear of the store to try to locate the security tapes, while Carrington

went to the counter with the BB gun and ordered Hocker to place the money

from the register in the bag. Hoy witnessed Carrington take the money and

put it in the bag and then observed him take Hocker to the back of the store

and push her to the ground. Hoy stated that they then left the Sunoco and

returned to the creek, into which they threw their sweats.

        This evidence, when viewed in the light most favorable to the

Commonwealth,        together    with     all   reasonable    inferences   therefrom,

McDonough, supra, establishes that Carrington committed the crimes of

which he was convicted.

        Finally, Carrington claims that his sentence was excessive. This claim

challenges the discretionary aspects of sentencing, which are not reviewable

as of right.    Rather, an appellant is required to “set forth in his brief a

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concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). This

statement must:

     specify where the sentence falls in relation to the sentencing
     guidelines and what particular provision of the code it violates.
     Additionally, the statement must specify what fundamental norm
     the sentence violates and the manner in which it violates that
     norm. If the statement meets these requirements, we can
     decide whether a substantial question exists.

Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa. Super. 2004).              Here,

counsel failed to include a Rule 2119(f) statement in his brief.     Nor did

counsel set forth any argument, even in neutral form. Nonetheless, for the

reasons that follow, we grant relief to Carrington and remand his case for

resentencing.

     Carrington was sentenced to a mandatory minimum of five years

imprisonment pursuant to 42 Pa.C.S.A. § 9712, which provides as follows:

      (a) Mandatory sentence. – Except as provided under section
     9716 (relating to two or more mandatory minimum sentences
     applicable), any person who is convicted in any court of this
     Commonwealth of a crime of violence as defined in section
     9714(g) (relating to sentences for second and subsequent
     offenses), shall, if the person visibly possessed a firearm or a
     replica of a firearm, whether or not the firearm or replica was
     loaded or functional, that placed the victim in reasonable fear of
     death or serious bodily injury, during the commission of the
     offense, be sentenced to a minimum sentence of at least five
     years of total confinement notwithstanding any other provision
     of this title or other statute to the contrary. Such persons shall
     not be eligible for parole, probation, work release or furlough.

     (b) Proof at sentencing. –Provisions of this section shall not be
     an element of the crime and notice thereof to the defendant shall
     not be required prior to conviction, but reasonable notice of the


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     Commonwealth’s intention to proceed under this section shall be
     provided after conviction and before sentencing.            The
     applicability of this section shall be determined at sentencing.
     The court shall consider any evidence presented at trial
     and shall afford the Commonwealth and the defendant an
     opportunity to present any necessary additional evidence
     and shall determine, by a preponderance of the evidence,
     if this section is applicable.

42 Pa.C.S.A. § 9712 (emphasis added).

     In Alleyne v. United States, 133 S.Ct. 2151 (2013), the United

States Supreme Court held that any facts leading to an increase in a

sentencing floor are elements of the crime and must be presented to the

fact-finder and proven beyond a reasonable doubt. Thus, section 9712(b),

as written, was rendered constitutionally infirm because it allowed the

sentencing court to determine whether the mandatory minimum applies, and

required that the Commonwealth prove the section’s applicability by only a

preponderance of the evidence.

     At trial, in an attempt to comply with Alleyne, the court had the jury

decide, beyond a reasonable doubt, whether Carrington possessed a firearm

and whether that fact placed Hocker in reasonable fear of death or serious

bodily injury.   The jury found in the affirmative, and Carrington was

sentenced accordingly.

     Recently, in Commonwealth v. Valentine, 2014 Pa. Super. 220 (Pa.

Super. filed October 3, 2014), this Court applied Alleyne to a factual

scenario identical in all relevant respects to the matter sub judice. There,

the defendant was sentenced to a mandatory minimum pursuant to section


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9712 after the jury made a specific factual finding, beyond a reasonable

doubt, that he had possessed a firearm that placed the victim in reasonable

fear of death or serious bodily injury.     On appeal, Valentine argued that,

despite the fact that the jury made the section 9712 determination beyond a

reasonable doubt, the unconstitutional portion of section 9712 – subsection

(b) – was not severable from the remainder, rendering the entire statute

unconstitutional. This Court agreed. In finding the statute non-severable,

we quoted this Court’s earlier decision in Commonwealth v. Newman,

2014 Pa. Super. LEXIS 2871, *35 (Pa. Super. 2014), interpreting section

9712.1 (Sentences for certain drug offenses committed with firearms):

     Subsections (a) and (c) of [s]ection 9712.1 are essentially and
     inseparably connected.     Following Alleyne, [s]ubsection (a)
     must be regarded as the elements of the aggravated crime of
     possessing a firearm while trafficking drugs. If [s]ubsection (a)
     is the predicate arm of [s]ection 9712.1, then [s]ubsection (c) is
     the “enforcement” arm. Without [s]ubsection (c), there is no
     mechanism in place to determine whether the predicate of
     [s]ubsection (a) has been met.

Valentine, supra at *21, quoting Newman, supra at *34-35.

     We further concluded that, by presenting the firearm enhancement

question to the jury, “the trial court performed an impermissible legislative

function by creating a new procedure in an effort to impose the mandatory

minimum sententence[] in compliance with Alleyne.” Id. at *22. “[I]t is

manifestly the province of the General Assembly to determine what new

procedures must be created in order to impose mandatory minimum

sentences     in   Pennsylvania   following     Alleyne.”      Id.,   quoting

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Commonwealth v. Newman, 2014 Pa. Super. LEXIS 2871, *35 (Pa.

Super. 2014).      Accordingly, we concluded that the trial court lacked

authority to allow the jury to determine the application of section 9712 and

vacated Valentine’s sentence, directing the court to re-impose sentence

“without consideration of any mandatory minimum sentence[.]” Id. at *23.

     Likewise, here, we are constrained to vacate Carrington’s sentence and

remand his case to the trial court for resentencing in accordance herewith.

In re-imposing sentence, the court shall not apply the mandatory minimum

sentencing provisions of section 9712.

     Moreover, because we have found that Carrington has a meritorious

appellate claim, we must deny counsel’s request to withdraw.

     Judgment of sentence vacated.       Case remanded for resentencing in

accordance with the dictates of this memorandum. Jurisdiction relinquished.

Motion to withdraw denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




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