Com. v. Anderson, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY JOSEPH ANDERSON
Appellant No. 1145 WDA 2016
Appeal from the Judgment of Sentence July 21, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003325-2015
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 29, 2017
Jeffery Anderson appeals from the judgment of sentence, entered in
the Court of Common Pleas of Erie County, following his conviction for
robbery,1 theft by unlawful taking,2 receiving stolen property,3 simple
assault,4 and possessing an instrument of crime.5 Anderson’s counsel seeks
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3701(a)(1)(II).
2
18 Pa.C.S.A. § 3921(a).
3
18 Pa.C.S.A. § 3925(a).
4
18 Pa.C.S.A. § 2701(a)(3).
5
18 Pa.C.S.A. § 907(a).
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Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
grant counsel’s petition to withdraw and affirm Anderson’s judgment of
sentence.
The incident leading to Anderson’s arrest and conviction occurred at
the Avalon Hotel (“the Avalon”), in Downtown Erie, on the night of October 1
into the morning of October 2, 2015. Dawn Keister was working alone at
the front desk when a male entered the Avalon wearing a blue hooded
sweatshirt with the hood up and a scarf, covering his face from the nose
down. The man pulled out a knife and demanded money from the cash
register. Keister gave the man approximately seventy dollars from the cash
register. The man then demanded to see what was under the cash register
tray. The Avalon had previously kept money under the tray, but had
stopped this practice about eight years prior to the incident. The man left
the Avalon upon seeing that there was no money under the tray.
Keister testified that she had instantly recognized the male as “Jeff,” a
former Avalon employee who Keister worked with for a period of about six
months approximately ten years earlier. Anderson was no longer working at
the Avalon when the hotel ended its practice of keeping money under the
tray of the cash register. Keister also testified that she had spoken with
Anderson two days prior to the incident, when Anderson had come into the
Avalon wearing a blue hooded sweatshirt and asked her if he could use the
bathroom.
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During the Erie Police Department’s investigation of the robbery, a
photo lineup was given to Keister, in which she was almost immediately able
to identify Anderson’s picture as the individual who robbed the Avalon. A
photograph taken at a Walmart on September 29, 2015, also showed
Anderson wearing a blue hooded sweatshirt. In addition, Detective Sergeant
Rick Lorah testified that during his questioning of Anderson, Anderson had
admitted going to the Avalon on the night of the incident.
A jury convicted Anderson on May 10, 2016, and on July 21, 2016, he
was sentenced to serve an aggregate term of 40 to 120 months’
incarceration followed by five years’ probation. Anderson filed a post-
sentence motion to modify or reduce sentence, which the trial court denied
on July 29, 2016. Anderson filed a timely notice of appeal on August 2,
2016. On August 10, 2016, Anderson’s counsel filed a statement of intent to
file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). The trial court
transmitted the record without an opinion to this court on September 7,
2016.
Anderson raises the following issue for our review:
Whether the interests of justice entitle the appellant to a new
trial as the jury’s verdict was against the weight of the evidence
such that it effectively shocked the conscience.
Brief of Appellant, at 3.
Counsel has filed a petition to withdraw pursuant to the requirements
set forth in Anders and Santiago. Our Supreme Court in Santiago held:
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[I]n the Anders brief that accompanies court[-]appointed
counsel’s petition to withdraw, counsel 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 the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has satisfied the procedural
requirements of Santiago, this Court engages in an independent evaluation
of the record to determine if the claims on appeal are wholly frivolous.
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).
Counsel’s brief satisfies the necessary procedural requirements. Her
brief provides “a summary of the procedural history and facts, with citations
to the record.” Santiago, 978 A.2d at 361; Brief of Appellant, at 4-5. She
further provides a review of the record, and raises the sole issue she
believes arguably supports an appeal. Id. at 360; Brief of Appellant, at 7.
Counsel’s brief also states her conclusion that the claims are frivolous, and
she provides her reasoning for this conclusion. Id.; Brief of Appellant, at 7,
8. Lastly, counsel notified Anderson of her request to withdraw and provided
him with a copy of the brief and a letter explaining his right to retain new
counsel or proceed pro se as to any issues he believes might have merit.
Counsel having satisfied the procedural requirements for withdrawal,
we must now examine Anderson’s claim to determine if the appeal is
frivolous. Anders, 386 U.S. at 744; Rojas, 874 A.2d at 639. Specifically,
Anderson asserts that his conviction was against the weight of the evidence.
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An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. A trial judge must do more
than reassess the credibility of the witnesses and allege that he
would not have assented to the verdict if he were a juror. Trial
judges, in reviewing a claim that the verdict is against the
weight of the evidence[,] do not sit as the thirteenth juror.
Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa. 2013), quoting
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,
quotation marks, and footnote omitted). In other words, a court may grant
a new trial because the verdict is against the weight of the evidence only
when the verdict rendered is so contrary to the evidence as to shock one’s
sense of justice.6 Id. at 651.
Upon review of the record as a whole, we conclude that the verdict
was not so contrary to the weight of the evidence as to shock one’s sense of
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Here, the trial court denied Anderson’s post-sentence challenge to the
weight of the evidence. However, because counsel filed a notice of intent to
file an Anders brief, the court declined to write an opinion. Thus, we
undertake our review without the benefit of the trial court’s analysis on this
issue. See Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004)
(“While appellate review of a weight of the evidence claim normally involves
examining the trial court’s exercise of discretion in its review of the fact-
finder’s determinations, instantly, we must test the merits of Appellant’s
claim without the benefit of a trial court’s opinion.” (citation omitted)).
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justice. Snyder, 870 A.2d at 346. Keister testified that she immediately
recognized the robber as Anderson. She further testified that the individual
possessed information about the Avalon’s money storage practices dating to
the time of Anderson’s employment at the hotel. Keister was able to identify
Anderson from a photo lineup as the individual who robbed the Avalon.
Anderson was further identified by the photograph that was taken of him at
Walmart showing him wearing a blue hooded sweatshirt. Additionally,
Anderson admitted during an interview with Detective Lorah that he had
been to the Avalon on the night of the robbery.
To succeed on his weight claim, Anderson must raise evidence that,
notwithstanding the above facts that support the jury’s verdict, is “so clearly
of greater weight that to ignore them or to give them equal weight with all
the facts is to deny justice.” Widmer, 744 A.2d at 752. While Anderson
correctly states this legal standard, he does not refer to any evidence to
show that the jury’s verdict should have shocked our sense of justice, and
our own independent review reveals none. Therefore, Anderson’s weight of
the evidence challenge is meritless.
Counsel has satisfied all procedural requirements for withdrawal.
Furthermore, after this Court’s review of the record, we find Anderson’s
claim to be meritless and affirm his judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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