Com. v. Brock, J. ( 2019 )

J-S03024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN BROCK :
:
Appellant : No. 943 EDA 2018
Appeal from the Judgment of Sentence January 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004626-2016
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 03, 2019
Appellant, John Brock, appeals from the judgment of sentence entered
on January 25, 2018, as made final by the denial of Appellant’s post-sentence
motion on March 26, 2018. In this appeal, Appellant’s court-appointed
counsel has filed both a petition for leave to withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude
that Appellant’s counsel has complied with the procedural requirements
necessary to affect withdrawal. Moreover, after independently reviewing the
record, we conclude that the instant appeal is wholly frivolous. We, therefore,
grant counsel’s petition for leave to withdraw and affirm Appellant’s judgment
of sentence.
At approximately 6:00 on the morning of January 17, 2016, Appellant
walked into the Station House Transitional Shelter (hereinafter “the Shelter”)
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and began shooting. Appellant shot Edward Barksdale five times, killing him;
Appellant also shot at L.B. twice, hitting him once and seriously injuring him.
At the time of the shooting, Appellant had been a resident of the Shelter
for approximately two months. N.T. Trial, 1/23/18, at 122. L.B. was an
employee of the Shelter and knew Appellant prior to the shooting. Id. at 121.
L.B. testified that, immediately before the shooting, L.B. was standing in the
Shelter’s front office desk and was speaking with Mr. Barksdale, who was also
an employee of the Shelter; also present at the time was Derrick Cross, who
was a resident of the Shelter. Id. at 123-124. L.B. testified that they were
having a conversation when “[Appellant] came in, said nothing, pulled out [a
handgun] and started firing” at Mr. Barksdale. Id. at 124-125. As L.B.
testified, when Appellant began firing at Mr. Barksdale, L.B. turned and ran
down a hallway. Id. at 128-129. However, while he was running, he was
shot in the left buttock and fell to the ground. Id. at 129 and 134. L.B.
testified that he got up, ran into a bedroom, and called 911. Id. at 130 and
132. He testified that he identified Appellant, by name, as the lone shooter
on the 911 call. Id. at 132.
Among other people who testified at Appellant’s trial were Derrick Cross
and Rakim Jordan. In his testimony, Derrick Cross positively identified
Appellant as the individual who shot and killed Mr. Barksdale. N.T. Trial,
1/24/19, at 9. Mr. Cross also testified that, after Appellant shot Mr. Barksdale
five times, he witnessed Appellant run after L.B. and fire two more shots. Id.
at 10-11. Rakim Jordan testified that he was present in the Shelter at the
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time of the shooting. Mr. Jordan testified that he heard gunshots, looked out
of his room door, and saw L.B. running down the hall, with Appellant chasing
after him. Id. at 71-75. Further, Mr. Jordan testified that he later saw
Appellant leaving the Shelter with a gun in his hand. Id. at 75-76.
The jury found Appellant guilty of first-degree murder, attempted
murder, aggravated assault, firearms not to be carried without a license, and
possessing instruments of crime.1 N.T. Trial, 1/25/18, at 143-144. On
January 25, 2018, the trial court sentenced Appellant to serve the mandatory
term of life in prison without the possibility of parole for his first-degree
murder conviction.2 N.T. Sentencing, 1/25/18, at 151.
Following the denial of Appellant’s post-sentence motion, Appellant filed
a timely notice of appeal. On appeal, Appellant’s court-appointed counsel filed
a petition for leave to withdraw and counsel accompanied this petition with an
Anders brief. The Anders brief raises 12 claims:
1. The trial court erred by denying Appellant’s request that
trial counsel be relieved and new counsel be appointed to
represent him at trial and for not conducting a colloquy of
Appellant with respect to whether he accepted trial counsel
as his attorney.
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1 18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a), 6106(a)(1), and 907(a),
respectively.
2The trial court also sentenced Appellant to serve a concurrent term of ten to
20 years in prison for his attempted murder conviction. N.T. Sentencing,
1/25/18, at 151.
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2. The trial court erred by refusing Appellant’s request that
the trial be continued so that he could prepare to represent
himself at trial.
3. The sentence of life imprisonment imposed on Appellant is
illegal because it lacks a statutory basis.
4. The trial court lacked subject matter jurisdiction to try
Appellant because the Crimes Code was not adopted by the
Pennsylvania State Legislature and because the information
charging him was defective.
5. Appellant was not tried by a jury of his peers because the
jury was not comprised of persons residing in the area of
Broad Street and Lehigh Avenue and because the prospective
juror pool was not composed of persons residing in that area.
6. Trial counsel was ineffective for reasons set forth in
Appellant’s pro se filing of February 16, 2018.
7. Trial counsel was ineffective because he did not present
argument in the post-sentence motion he filed asserting that
the verdict was against the weight of the evidence and that
the evidence was insufficient to sustain the charges.
8. Trial counsel was ineffective for not sufficiently discussing
with Appellant the pros and cons of accepting the
Commonwealth’s offer in exchange [for] a guilty plea.
9. The trial court committed an abuse of discretion by
refusing to give a Kloiber charge.
10. The trial court erred by entering a plea of not guilty to
the charge of third-degree murder when Appellant refused to
enter a plea.
11. The verdicts were against the weight of the evidence and
the evidence was insufficient to sustain the convictions
because of inconsistencies in the descriptions of the shooter
given by various witnesses.
12. Appellant’s sentence is illegal because the trial court
refused to advise Appellant of the statute under which it was
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sentencing Appellant and because the court did not convene
a sentencing hearing pursuant to 42 [Pa.C.S.A.] § 9711.
Appellant’s Brief at 18-50 (some capitalization omitted).
Before reviewing the merits of this appeal, this Court must first
determine whether appointed counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “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.”
Miller, 715 A.2d at 1207. 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. 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.
Finally, counsel must furnish a copy of the Anders brief to his or her
client and advise the client “of [the client’s] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court’s attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
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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; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. . . . [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze those issues
of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel complied with all of the above procedural
obligations. We must, therefore, review the entire record and analyze whether
this appeal is, in fact, wholly frivolous. Our review begins with the claims
raised in the Anders brief.
First, Appellant claims, the trial court erred when it denying his request
that “trial counsel be relieved and new counsel be appointed to represent him
at trial.” Appellant’s Brief at 18.
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“Both the right to counsel and the right to self-representation are
guaranteed by the Sixth Amendment to the United States Constitution and by
Article I, Section Nine of the Pennsylvania Constitution.” Commonwealth v.
Phillips, 93 A.3d 847, 851 (Pa. Super. 2014) (citation omitted). “A motion
for change of counsel by a defendant for whom counsel has been appointed
shall not be granted except for substantial reasons.” Pa.R.Crim.P. 122(C). “To
satisfy this standard, a defendant must demonstrate that he has an
irreconcilable difference with counsel that precludes counsel from representing
him.” Commonwealth v. Keaton, 45 A.3d 1050, 1070 (Pa. 2012)
(quotations and citations omitted). As this Court explained, “the right to
appointed counsel does not include the right to counsel of the defendant's
choice. Rather, the decision to appoint different counsel to a requesting
defendant lies within the discretion of the trial court.” Commonwealth v.
Smith, 69 A.3d 259, 266 (Pa. Super. 2013) (quotations and citations
omitted).
Appellant requested that the trial court change his trial counsel twice:
first in a pro se letter that Appellant addressed to the trial court approximately
two months before his trial was scheduled to begin and, second, on the day
his trial commenced. See N.T. Hearing, 12/5/17, at 2-3; N.T. Trial, 1/22/18,
at 3-6. During the hearings on Appellant’s motions, Appellant never claimed
that he and trial counsel were experiencing irreconcilable differences. See
N.T. Hearing, 12/5/17, at 2-18; N.T. Trial, 1/22/18, at 3-42. Rather, during
the hearings, Appellant merely declared that he was dissatisfied with certain
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aspects of his trial counsel’s performance, such as: Appellant and trial counsel
were having trouble communicating with one another; trial counsel was not
acting on Appellant’s requests as quickly as Appellant would have preferred;
trial counsel did not review all documents in the case with Appellant; trial
counsel did not meet with Appellant in person to go over discovery materials;
and, trial counsel “sp[oke] to [Appellant] in a very vague manner.” See N.T.
Hearing, 12/5/17, at 4 and 9; N.T. Trial, 1/22/18, at 9, 11, and 17.
This Court has affirmed trial courts' denial of motions for new counsel in
circumstances in which the attorney-client relationship deteriorated far
beyond that in the case at bar. For example, in Commonwealth v. Neal,
563 A.2d 1236 (Pa. Super. 1989), the defendant sought removal of trial
counsel because she failed to file pretrial motions that the defendant
requested and because she failed to meet with the defendant for the length
of time he preferred. Id. at 1239–1240. The trial court denied the motion for
appointment of new counsel and this Court affirmed that determination. See
id. at 1242–1243.
In Commonwealth v. Chew, 487 A.2d 1379 (Pa. Super. 1985), the
defendant “became dissatisfied with his counsel . . . because of a difference
of opinion regarding strategy and because of what [the defendant] perceived
as inadequate preparation for trial. This dissatisfaction continued at the time
of trial. Shortly before trial started, [the defendant] spit in the face of his
lawyer.” Id. at 1383. This Court affirmed the denial of appointment of new
counsel, holding that “differences of opinion concerning strategy or the brevity
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of pre-trial communications does not compel the appointment of new counsel.”
Id. Combined, Neal and Chew indicate that the complaints Appellant raised
at the evidentiary hearings on his request for appointment of new counsel do
not rise to the level of irreconcilable differences. See also Commonwealth
v. Knapp, 542 A.2d 546, 549 (Pa. Super. 1988) (“‘mere dissatisfaction’ with
appointed counsel is inadequate to establish ‘good cause shown’”). As such,
Appellant’s first claim on appeal is frivolous.3
Next, Appellant claims that the trial court “erred by refusing Appellant’s
request that the trial be continued so that he could prepare to represent
himself at trial.” Appellant’s Brief at 25.
As our Supreme Court has explained:
Appellate review of a trial court's continuance decision is
deferential. The grant or denial of a motion for a continuance
is within the sound discretion of the trial court and will be
reversed only upon a showing of an abuse of discretion. As
[the Pennsylvania Supreme Court has] consistently stated,
an abuse of discretion is not merely an error of judgment.
Rather, discretion is abused when the law is overridden or
misapplied, or the judgment exercised is manifestly
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3 Appellant also claims that the trial court erred when it did not “conduct[] a
colloquy of Appellant with respect to whether he accepted trial counsel as his
attorney.” Appellant’s Brief at 18. Appellant did not raise this claim before
the trial court. Therefore, Appellant waived this claim. Pa.R.A.P. 302(a)
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal”). Further, since the claim on appeal is waived, the
claim is frivolous under Anders. Commonwealth v. Tukhi, 149 A.3d 881,
888-889 (Pa. Super. 2016) (holding that, under Anders, “[a]n issue that is
waived is frivolous”); Commonwealth v. Kalichak, 943 A.3d 285, 291 (Pa.
Super. 2008) (holding: “this issue has been waived. Having been waived,
pursuing this matter on direct appeal is frivolous”).
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unreasonable, or the result of partiality, prejudice, bias, or
ill-will, as shown by the evidence or the record.
...
Just as a criminal defendant has a constitutional right to
counsel, so too does the defendant have a long-recognized
constitutional right to dispense with counsel and to defend
himself before the court. The right to self-representation,
however, is not absolute.
...
[The Pennsylvania Supreme] Court has recognized that a
request to proceed pro se must be made in a timely fashion,
and not for purposes of delay, and the request must be clear
and unequivocal. Obviously, defendants should not be
permitted to unreasonably clog the machinery of justice or
hamper and delay the effort to administer justice effectively.
Commonwealth v. Brooks, 104 A.3d 466, 469 and 474-475 (Pa. 2014)
(quotations and citations omitted).
Appellant first requested permission to proceed pro se on January 22,
2018 – which was the first day of trial. The request followed the trial court’s
reaffirmation of its December 5, 2017 order, which denied Appellant’s request
to appoint new trial counsel. See N.T. Trial, 1/22/18, at 6. As Pennsylvania
Rule of Criminal Procedure 106(D) states:
A motion for continuance on behalf of the defendant shall be
made not later than 48 hours before the time set for the
proceeding. A later motion shall be entertained only when
the opportunity therefor did not previously exist, or the
defendant was not aware of the grounds for the motion, or
the interests of justice require it.
Pa.R.Crim.P. 106(D).
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Appellant knew on December 5, 2017 that the trial court was not going
to grant his request for new counsel. Appellant’s January 22, 2018, morning-
of-trial request for a continuance to proceed pro se was, thus, untimely under
Rule 106(D). Appellant’s request was made after “the time set for the” trial
and, since Appellant knew that the trial court was not going to grant his
request for new counsel, the opportunity for Appellant’s request to proceed
pro se “previously existed,” Appellant was well aware of the grounds for the
motion, and the interests of justice did not require a continuance. See id.Further, we note that the trial court was well-aware of the circumstances
surrounding Appellant’s request for a continuance, of Appellant’s perpetual
inability to cooperate with any counsel, and of Appellant’s delay tactics. See
N.T. Trial, 1/22/18, at 5-6 (the trial court declared: “There were problems
between you and [your prior attorney, Samuel Stretton, Esquire] and it is on
the record. So that is him. Now we have [your current trial counsel, Jeffrey
Azzarano, Esquire]. . . . I am not removing Mr. Azzarano. We will be in the
same spot six months from now if I remove him. So we are proceeding to
trial”).
Considering the totality of the circumstances in this case, we conclude
that the trial court did not abuse its discretion when it denied Appellant’s
request for a continuance and that Appellant’s claim on appeal is frivolous.
See Brooks, 104 A.3d at 478-479 (holding that, considering the totality of
the circumstances, the trial court did not abuse its discretion when it denied
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the defendant’s “day-of-trial request for a continuance, so that he could
represent himself”).
Next, Appellant claims that his sentence of life imprisonment “is illegal
because it lacks a statutory basis.” Appellant’s Brief at 28. This claim is
frivolous, as 18 Pa.C.S.A. § 1102 and 42 Pa.C.S.A. § 9711 provide the
statutory basis for Appellant’s sentence of life imprisonment. See 18
Pa.C.S.A. § 1102(a)(1) (“a person who has been convicted of a murder of the
first degree . . . shall be sentenced to death or to a term of life imprisonment
in accordance with 42 Pa.C.S. § 9711”); 42 Pa.C.S.A. § 9711(a)(1) (provides
only two sentencing alternatives for a first-degree murder conviction: death
or life imprisonment).
Fourth, Appellant claims that the trial court “lacked subject matter
jurisdiction to try Appellant because the Crimes Code was not adopted by the
Pennsylvania State Legislature and because the information charging him was
defective.” Appellant’s Brief at 29. Essentially, Appellant claims that the trial
court lacked subject matter jurisdiction over his case and that the information
was defective because Appellant was charged with violating the Pennsylvania
Crimes Code, which is Purdon’s Title 18, rather than violating Pennsylvania
Pamphlet Law, which is the true positive law of Pennsylvania. 4 See id. This
____________________________________________
4 The Commonwealth Court of Pennsylvania has explained:
Pennsylvania Consolidated Statutes are official codifications
that are enacted by the General Assembly. By contrast, the
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claim is frivolous. Indeed, in a prior case, the Court of Common Pleas of Bucks
County ably disposed of the claim Appellant currently raises:
There are “two requirements for subject matter jurisdiction
as it relates to criminal defendants: the competency of the
court to hear the case, and the provision of formal notice to
the defendant of the crimes charged in compliance with the
____________________________________________
unofficial codification and annotation of Pennsylvania's
Pamphlet Laws, known as Purdon's, is the work product of
the West Publishing Company.
Because Pennsylvania's Pamphlet Laws are organized by
chronology, not subject, Purdon's has long served legal
practitioners. As Judge Robert E. Woodside has explained:
Much of our law, civil and criminal, developed in the past
century as part of the common law, but during this
century more and more statutes replaced the common
law. Unlike the so-called “code states” which from their
formation depended solely upon an organized single code
containing all the statutory law of that state,
Pennsylvania's statutes “grew like Topsy.” As a result, the
only way to find the statutes on a particular subject was
through digests such as West's Statutes and, more
recently, Purdon's Pennsylvania Statutes. Purdon's has
[served] the profession well becoming “the Bible” of the
statutory law, but the “official” statutes are in the
Pamphlet Laws and not Purdon's.
ROBERT E. WOODSIDE, PENNSYLVANIA CONSTITUTIONAL
LAW 307 (1985). . . . Accordingly, while Purdon's has been
the key to finding statutory law in Pennsylvania, it is not itself
positive law. By contrast, Pennsylvania's official codification
of its statutes is positive law.
In re Appeal of Tenet Health Sys. Bucks County, LLC, 880 A.2d 721, 725
(Pa. Cmwlth. 2005) (footnote and emphasis omitted).
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Sixth Amendment of the United States Constitution and
Article I, Section 9, of the Pennsylvania Constitution.”
Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007).
“[T]he courts of common pleas have statewide jurisdiction in
all cases arising under the Crimes Code.” Id. (emphasis
added). This court believes that such a statement by the
highest court in this Commonwealth makes it clear that
reference to the Crimes Code rather than Pamphlet Law is
perfectly acceptable and this court was not deprived of
jurisdiction in this matter “because the defendant was
charged with numerous violations of the Pennsylvania Crimes
Code (Purdon's title 18) rather than alleging violations of the
true law of Pennsylvania, which is Pennsylvania Pamphlet
Law.”
Furthermore, as long as a defendant receives formal notice,
even the lack of a proper criminal indictment will not deprive
the trial court of subject matter jurisdiction. Id. Therefore,
even if appellant is correct that there is something
inappropriate about referring to the Crimes Code, the
defendant still received clear notice of the charges against
him. Accordingly, [the claim] is devoid of merit.
Commonwealth v. Hines, 4 Pa. D. & C. 5th 389, 395 (C.C.P. Bucks Cty.
2008).
We agree with the above analysis and conclude that Appellant’s claim
on appeal is frivolous.
Fifth, Appellant claims that he was not “tried by a jury of his peers
because the jury was not comprised of persons residing in the area of Broad
Street and Lehigh Avenue and because the prospective juror pool was not
composed of persons residing in that area.” Appellant’s Brief at 32-33.
Appellant did not raise this claim before the trial court. Therefore, Appellant
waived this claim. Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal”). And, since the
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claim on appeal is waived, the claim is frivolous under Anders. Tukhi, 149
A.3d at 888-889 (holding that, under Anders, “[a]n issue that is waived is
frivolous”); Kalichak, 943 A.3d at 291 (holding: “this issue has been waived.
Having been waived, pursuing this matter on direct appeal is frivolous”).
Appellant’s sixth, seventh, and eighth claims raise challenges to his trial
counsel’s effectiveness. These claims are unreviewable on direct appeal.
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general rule,
a [defendant] should wait to raise claims of ineffective assistance of trial
counsel until collateral review”); Commonwealth v. Holmes, 79 A.3d 562,
620 (Pa. 2013) (“absent [certain, specified] circumstances [(that are
inapplicable to the case at bar)] claims of ineffective assistance of counsel are
to be deferred to PCRA review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal”). Appellant’s claims are thus frivolous.
Ninth, Appellant claims that the trial court erred when it refused to give
a Kloiber[5] charge.
“A Kloiber instruction informs the jury that an eyewitness identification
should be viewed with caution when either the witness did not have an
opportunity to view the defendant clearly, equivocated on the identification of
the defendant, or has had difficulties identifying the defendant on prior
occasions.” Commonwealth v. Pander, 100 A.3d 626, 635 (Pa. Super.
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5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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2014) (en banc) (citation omitted). “We evaluate whether a Kloiber
instruction is necessary under an abuse of discretion standard.”
Commonwealth v. Sanders, 42 A.3d 325, 332–333 (Pa. Super. 2012).
During trial, Appellant objected to the trial court’s jury instructions and,
specifically, to the absence of the Kloiber charge. See N.T. Trial, 1/25/18,
at 139. Thus, Appellant preserved the current claim of error. Nevertheless,
Appellant’s claim is frivolous because every witness who identified Appellant
as the shooter testified that they had a clear view of Appellant’s face at the
time of the shooting and no witness “equivocated on the identification of
[Appellant or had] difficulties identifying [Appellant] on prior occasions.” See
Pander, 100 A.3d at 635. Therefore, Appellant was not entitled to a Kloiber
charge and his claim to the contrary is frivolous.
Next, Appellant claims that the trial court erred when it “entered a plea
of not guilty to the charge of third-degree murder . . . when [Appellant]
refused to enter a plea to that charge.” Appellant’s Brief at 39. This claim is
waived, as Appellant did not object to the trial court’s action at trial. See N.T.
Trial, 1/23/18, at 20-32; Pa.R.A.P. 302(a). The appellate claim is thus
frivolous. See Tukhi, 149 A.3d at 888-889.
For Appellant’s eleventh claim on appeal, Appellant contends that the
verdicts were against the weight of the evidence and the evidence was
insufficient to sustain the convictions “because the witnesses who identified
him at trial gave prior inconsistent descriptions of him.” Appellant’s Brief at
42. These claims are waived, as Appellant’s post-sentence motion consisted
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of mere boilerplate language. Appellant’s Post-Sentence Motion, 1/26/18, at
1 (“[Appellant] hereby alleges the following errors/challenges to his
conviction/judgment of sentence, and seeks a new trial based on same: (a)
The evidence presented at trial was insufficient to sustain a conviction on all
counts; (b) The guilty verdicts were against the clear weight of the evidence”);
Commonwealth v. Holmes, 461 A.2d 1268, 1270 (Pa. Super. 1983) (en
banc) (“a post-verdict motion, either that ‘the evidence was insufficient to
support the verdict,’ or that ‘the verdict was against the weight of the
evidence,’ [preserves] no issue for appellate review unless the motion goes
on to specify in what respect the evidence was insufficient, or why the verdict
was against the weight of the evidence”).
Finally, Appellant claims that his sentence is illegal because “the trial
court refused to advise Appellant of the statute under which it was sentencing
[him] and because the [trial] court did not convene a sentencing hearing
pursuant to 42 Pa.C.S. § 9711.” These claims are frivolous because: nothing
requires a trial court to “advise Appellant of the statute under which it was
sentencing” him and, since the Commonwealth elected not to pursue the death
penalty in this case, the only sentence that the trial court could have imposed
for Appellant’s first-degree murder conviction was life imprisonment. See 18
Pa.C.S.A. § 1102(a)(1) and 42 Pa.C.S.A. § 9711(a).
We have independently considered the claims raised within Appellant’s
brief and we have determined that the claims are frivolous. We have also
considered Appellant’s pro se response to the Anders brief, which either
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reiterates the claims raised in the Anders brief or lists claims without
providing argument. The former claims have been discussed in this
memorandum; the latter claims do not merit additional discussion. Further,
after an independent review of the entire record, we see nothing that might
arguably support this appeal. The appeal is therefore wholly frivolous.
Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s
petition for leave to withdraw.
Petition for leave to withdraw appearance granted. Appellant’s Petition
for Writ of Habeas Corpus ad Subjiciendum denied. Judgment of sentence
affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/19
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