Commonwealth v. Hankerson , 2015 Pa. Super. 134 ( 2015 )

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2015 Pa. Super. 134
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYSHAWN HANKERSON, :
:
Appellant : No. 938 EDA 2014
Appeal from the Judgment of Sentence February 18, 2014,
Court of Common Pleas, Lehigh County,
Criminal Division at No. CP-39-CR-0001057-2013
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.
OPINION BY DONOHUE, J.: FILED JUNE 8, 2015
Tyshawn Hankerson (“Hankerson”) appeals from the judgment of
sentence imposed following his convictions of robbery, burglary and
conspiracy. His court-appointed counsel (“Counsel”) has filed a petition
seeking to withdraw and a brief in support thereof pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). Following our review, we deny Counsel’s request,
vacate the judgment of sentence and remand for resentencing.
We begin with the relevant factual background, which the trial court
summarized as follows:
At approximately 11 a.m. on March 8, 2012,
Megan Keinert was alone in her house located at 105
Chestnut Street, Coplay, Lehigh County,
Pennsylvania. She shared her home with her father,
her brother, and her boyfriend. While watching
television in her bedroom on the third floor, Ms.
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Keinert heard noise coming from her brother’s room
on the second floor. Ms. Keinert, believing that her
brother had returned home early from school, came
down the stairs. At the time, she was holding her
cellular telephone in her hand. She entered her
brother’s room and saw a black male, approximately
six feet tall, wearing a baseball cap and jacket. Ms.
Keinert also noted a bit of “scruff” on the individual’s
face and that he appeared shocked to see her.
Ms. Keinert asked the individual, “Can I help
you?” and made eye contact with him. The
individual stepped back and then came forward
toward Ms. Keinert and put a gun to her forehead.
At that point, there was sunlight coming into the
room and the individual was within arm’s reach of
Ms. Keinert. Ms. Keinert believed the gun was a
silver handgun, approximately five to six inches long.
Ms. Keinert estimated that she observed the
individual for approximately [thirty] seconds. The
individual directed Ms. Keinert to sit down and look
down. He asked her where money in the home was
located and Ms. Keinert told him that there wasn’t
any money in the home. He also inquired as to
whether there were additional people in the home.
She told him they were alone. He told Ms. Keinert to
lie down and tied her hands with a shoe lace [sic].
Ms. Keinert could hear the individual searching the
rest of the second floor and then proceed to the third
floor. After three to five minutes, Ms. Keinert stood
up and began to look for something to defend herself
with. She found a pocketknife, which she opened
and put under the bed nearby. The individual,
having heard Ms. Keinert moving around, told her to
lie back down.
Ms. Keinert was able to detect two male voices
on the first floor. The individual she had
encountered remained on the first floor for three to
five minutes and then returned. Ms. Keinert was still
on the floor. The individual put a towel and a gun to
the back of her head and instructed Ms. Keinert to
count to 300[,] and then left.
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Ms. Keinert counted to 163, pulled off the
towel … and called out. When no one responded,
she left. She ran through the kitchen and out of the
sunroom, to the outside.
At approximately the same time, Allen
Lindenmuth and his friend stopped for lunch at
Benny’s Hot Dogs, located on Front Street in Coplay.
Mr. Lindenmuth ate his lunch while sitting in his work
vehicle, parked in front of the Keinert residence. He
noticed a black male come out from the area
between the house and fence, wearing a black hat,
coat, and jeans, carrying two Giant grocery store
reusable bags. Approximately one to one and a half
minutes later, a female, later identified as Megan
Keinert, exited the residence. She approached the
vehicle, asked to borrow Mr. Lindenmuth’s cellular
telephone, and stated that she had just been robbed.
Mr. Lindenmuth attempted to chase the black male
but was unable to locate him.
***
When the Coplay police arrived, Ms. Keinert
related the encounter and a description of the
individual. The family determined that after the
robbery, a laptop computer, an iPod, video gaming
equipment and games were taken from the second
floor. Additionally, DVDs, a Blu-ray player, night
vision binoculars and prescription pain medicine were
taken from the home.
***
A few days after the incident, Ms. Keinert went
onto Facebook. She had a “gut feeling” that
someone who knew the layout of her home was
involved in the burglary/robbery. Specifically, she
believed that her father’s ex-fiance’s [sic] son,
Nicholas, had something to do with the robbery. Ms.
Keinert went onto Nicholas’ Facebook page and
began to look at his “friends” list and then to
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message posts on Nicholas’ page. Ms. Keinert
noticed a post of “[h]it me up” from an individual
whom she believed she recognized as the individual
she had encountered when she was robbed and her
home was burglarized.
Ms. Keinert, conducting her own investigation,
then visited that individual’s Facebook page where
she saw photographs of the individual and his user
name “Tyshawn Smash.” Upon Googling the name
“Tyshawn Smash,” Ms. Keinert was directed to
websites containing music recordings. Upon listening
to the music, Ms. Keinert recognized the voice and
believed that that was the individual who she
encountered in her home. Ms. Keinert brought her
“investigation” to the attention of the police.
Eventually, the police were able to develop a lineup
of possible suspects and included “Tyshawn
Smash’s” picture. It was later determined that
“Tyshawn Smash” was the [a]ppellant, Tyshawn
Henderson [sic]. Ms. Keinert picked [Hankerson’s]
picture out immediately as the person who robbed
her in her home. At trial, Ms. Keinert positively
identified [Hankerson] as the man who entered her
home and robbed her.
Trial Court Opinion, 8/26/14, at 3-5. At the conclusion of a three-day jury
trial, Hankerson was convicted of the offenses listed above. The trial court
sentenced Hankerson to an aggregate term of seven to twenty years of
imprisonment. When fashioning this sentence, the trial court applied the
sentencing enhancement provided in 42 Pa.C.S.A. § 9712. The trial court
denied Hankerson’s post-sentence motion and at Hankerson’s request,
Counsel timely filed this appeal. Rather than file an advocate’s brief,
however, Counsel filed a petition seeking to withdraw and Anders brief.
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A request by appointed counsel to withdraw pursuant to Anders and
Santiago gives rise to certain requirements and obligations, for both
appointed counsel and this Court. Commonwealth v. Flowers, __ A.3d
__, 2015 WL 1612010, *1 (Pa. Super. Apr. 10, 2015).
These requirements and the significant protection
they provide to an Anders appellant arise because a
criminal defendant has a constitutional right to a
direct appeal and to counsel on that appeal.
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
Super. 2007). This Court has summarized these
requirements as follows:
Direct appeal counsel seeking to withdraw
under Anders must file a petition averring
that, after a conscientious examination of the
record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders
brief setting forth issues that might arguably
support the appeal along with any other issues
necessary for the effective appellate
presentation thereof.
Anders counsel must also provide a copy of
the Anders petition and brief to the appellant,
advising the appellant of the right to retain
new counsel, proceed pro se or raise any
additional points worthy of this Court’s
attention.
Woods, 939 A.2d at 898 (citations omitted).
There are also requirements as to the precise
content of an Anders brief:
[T]he Anders brief that accompanies court-
appointed counsel's petition to withdraw ...
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
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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.
Id. at **1-2. If this Court determines that appointed counsel has met these
obligations, it is then our responsibility “to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Id. at *2. In so doing, we review not
only the issues identified by appointed counsel in the Anders brief, but
examine all of the proceedings to “make certain that appointed counsel has
not overlooked the existence of potentially non-frivolous issues.” Id.
Counsel has satisfied the procedural requirements of Anders and
Santiago. He has filed a petition seeking to withdraw with this Court, in
which he states his belief that after an examination of the record, the appeal
is wholly frivolous. Attached to that petition is a copy of the letter he sent to
Hankerson, which indicates that he enclosed copies of his petition to
withdraw and Anders brief and advises Hankerson that he can retain new
counsel or proceed pro se to raise with this Court any additional points he
deems worthy, and further advises that if he wishes to do either, he must act
quickly. Further, the content of Counsel’s Anders brief conforms to the
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Santiago requirements previously set forth. Accordingly, we undertake our
independent review to determine whether Hankerson’s appeal is wholly
frivolous.
The first issue Counsel presents is that the identification process was
unduly suggestive and therefore improper. Anders Brief at 12. Hankerson
did not raise this issue before the trial court. It is axiomatic that an issue
cannot be raised for the first time on appeal. Commonwealth v. Strunk,
953 A.2d 577, 579 (Pa. Super. 2008); Commonwealth v. Haughwout, 837
A.2d 480, 486 (Pa. Super. 2003) (issues, even of constitutional dimension,
are waived if not raised in the court below); Pa.R.A.P. 302(a). Accordingly,
we agree with Counsel that this issue is frivolous.1
Second, Counsel presents a challenge to the verdict as against the
weight of the evidence. Anders Brief at 12-13. The law pertaining to
weight of the evidence claims is well settled. The weight of the evidence is a
matter exclusively for the finder of fact who is free to believe all, part, or
none of the evidence, and determine the credibility of the witnesses.
Commonwealth v. Forbes, 867 A.2d 1268, 1273-74 (Pa. Super. 2005). In
determining a weight of the evidence claim, it is not the function of an
appellate court to re-assess the credibility of the witnesses’ testimony.
1
Even if this issue were not waived, we would still conclude that it is
frivolous. As the facts above illustrate, Ms. Keinert’s identification of
Hankerson as the perpetrator was based on her own investigation, not on
the photo array that the police presented to her after she provided them
with Hankerson’s name and photo.
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Commonwealth v. Aguado, 760 A.2d 1181, 1184 (Pa. Super. 2000) (en
banc). An appellate court may not reverse a verdict unless it is so contrary
to the evidence so as to shock one’s sense of justice. Forbes, 867 A.2d at
1273-74.
In this case, Ms. Keinert testified that she looked at Hankerson for
approximately thirty seconds during the course of the burglary; that she
heard Hankerson talking with another man on the first floor of her home;
that she recognized Hankerson immediately when she saw his picture on
Facebook; that Hankerson used the name “Tyshawn Smash” on Facebook;
and that upon hearing the voice of “Tyshawn Smash” (via the music
recordings that her investigation revealed), she was “one hundred percent
positive” that Hankerson was the man she encountered in her home. See
N.T., 1/15/14, at 13-76. This evidence, which the jury apparently accepted,
is sufficient to support the verdicts, and so Hankerson’s convictions under
these facts do not shock our sense of justice. Again, we agree with Counsel
that this is a frivolous issue for appeal.
Although we agree with Counsel’s assessment as to the issues he
identified in his Anders brief, our independent review of the record has
revealed a clearly meritorious issue related to the trial court’s application of
42 Pa.C.S.A. § 9712.2 The trial court applied the mandatory minimum
2
This Court has held that issues challenging the application of a mandatory
minimum sentencing statute are challenges to the legality of a sentence.
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enhancement provision found at § 9712 when it fashioned Hankerson’s
sentence based upon the jury’s explicit finding that Hankerson possessed a
gun when he committed the crimes at issue. N.T., 2/18/14, at 18.
This statute provides, in relevant part, 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
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
Commonwealth v. Mosley, ___ A.3d ___ 2015 WL 1774216, *12
(Pa. Super. Apr. 20, 2015). As such, they are not subject to waiver and this
Court may address the issue sua sponte. Id.; Commonwealth v. Orellana,
86 A.3d 877, 882 n.7 (Pa. Super. 2014).
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determine, by a preponderance of the evidence, if
this section is applicable.
42 Pa.C.S.A. § 9712(a)-(b). In a fairly recent decision, this Court found §
9712 unconstitutional, therefore rendering illegal a sentence formulated
thereunder. See Commonwealth v. Valentine, 101 A.3d 801, 811-12
(Pa. Super. 2014) (finding that § 9712 violates the United States Supreme
Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which
requires that any facts leading to an increase in mandatory minimum
sentence must be presented to a jury and proven beyond a reasonable
doubt). In Valentine, as in the present case, the jury made a specific
finding that the defendant possessed a firearm during the course of the
offense. We concluded that this was impermissible:
Here, the trial court permitted the jury, on the
verdict slip, to determine beyond a reasonable doubt
whether Appellant possessed a firearm that placed
the victim in fear of immediate serious bodily injury
in the course of committing a theft for purposes of
the mandatory minimum sentencing provisions of 42
Pa.C.S.A. § 9712(a), and whether the crime occurred
in whole or in part at or near public transportation,
for purposes of the mandatory minimum sentencing
provisions of 42 Pa.C.S.A. § 9713(a). The jury
responded “yes” to both questions. In presenting
those questions to the jury, however, we conclude,
in accordance with [Commonwealth v.] Newman,
[99 A.3d 86 (Pa. Super. 2014) (en banc),] that the
trial court performed an impermissible legislative
function by creating a new procedure in an effort to
impose the mandatory minimum sentences in
compliance with Alleyne.
Id. at 811.
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Because this Court has found § 9712 to be unconstitutional,
Hankerson’s sentence is illegal. Accordingly, we vacate Hankerson’s
judgment of sentence and remand for resentencing without consideration of
§ 9712.3
Petition to withdraw denied. Judgment of sentence vacated. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2015
3
We note that as Valentine was decided while Hankerson’s appeal was
pending, he is entitled to the application of the new rule of law announced
therein. Newman, 99 A.2d at 90.
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