Com. v. Ali, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SEVILLE J. ALI,
Appellant No. 3056 EDA 2016
Appeal from the Judgment of Sentence Entered April 7, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005228-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 29, 2018
Appellant, Seville J. Ali, appeals from the judgment of sentence of an
aggregate term of 10 to 20 years’ incarceration, imposed after he was
convicted, following a non-jury trial, of aggravated assault, 18 Pa.C.S. §
2702(a)(1), and possessing instruments of crime (PIC), 18 Pa.C.S. § 907(b).
Appellant seeks to raise several issues on appeal, including challenges to the
sufficiency and weight of the evidence to sustain his convictions. Additionally,
Appellant’s counsel, John Belli, Esq., seeks to withdraw his representation of
Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
we affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
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The trial court summarized the facts of Appellant’s case, as follows:
This is a case involving an incident that occurred on
February 22, 2014 at 438 West Queen Lane where Appellant shot
Complainant, Keith Chapelle[,] in the arm just outside Mr.
Chapelle’s front door.
Prior to February 22, 2014, Mr. Chapelle and Appellant had
a cordial relationship. Mr. Chapelle ran a moving business with U-
Haul to help people load and unload moving trucks. Appellant
completed some moving jobs for Mr. Chapelle’s business and
helped Mr. Chapelle find other workers. While Appellant worked
for Mr. Chapelle, Mr. Chapelle found out that some of his other
workers had noticed that Appellant habitually kept his doors to
both his home and car open. Mr. Chapelle thought that these
workers were planning on stealing from Appellant. Mr. Chapelle
fired these workers and informed Appellant about what happened
and that everything had been handled. Afterward[,] Appellant
shook his hand and they both went to the corner store together.
This occurred just over a month before the shooting.
Mr. Chapelle continued to hire Appellant’s friends[,] and Mr.
Chapelle had started to hear that Appellant did not like him.
During this time, Appellant would have conversations with Mr.
Chapelle’s wife where he would say that he felt like Mr. Chapelle
was trying to set Appellant up. Appellant had told Mr. Chapelle’s
wife during these conversations where Appellant felt threatened
that, “bullets can go through floors.” After Mr. Chapelle found out
that Appellant had a problem with him he no longer spoke to
Appellant. Prior to February 22, 2014, Appellant and Mr. Chapelle
had not argued.
On February 22, 2014 at 9:00 PM, Mr. Chapelle had returned
to his apartment building[,] which he shared with Appellant.
Appellant’s apartment was directly under Mr. Chapelle’s. When
Mr. Chapelle arrived to the building, Appellant was standing on
the porch and then engaged in conversation with Mr. Chapelle.
Mr. Chapelle then attempted to walk past him. Appellant …
became physical with Mr. Chapelle. Appellant boxed Mr. Chapelle
in so that he could not move. The two men beg[a]n arguing and
Appellant said that, “If anything happens to him or his family he
already told his people ‘second floor[.’”]
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Mr. Chapelle’s wife then came downstairs to bring Mr.
Chapelle inside their home. Mr. Chapelle and his wife turned the
corner to enter Mr. Chapelle’s apartment through the door on the
side of the house. While Mr. Chapelle and his wife turned the
corner, Appellant entered his apartment. Appellant’s girlfriend
Crystal then yelled, “No, don't do that.” When Appellant came
back out of his apartment, he had a silver gun.
Appellant approached Mr. Chapelle with the gun at his side
while Mr. Chapelle was at his apartment door. When Appellant
was ten feet away from Mr. Chapelle, Appellant raised the gun,
pointed it at Mr. Chapelle’s chest and shot him in the left arm. As
Mr. Chapelle fell to the ground, Appellant advanced towards him
and yelled, “If you tell anybody, if you call the cops, I’ll kill you. I
swear to God I’ll kill your family.” As Appellant stood over Mr.
Chapelle, he heard another click from the gun but no shot was
fired. Appellant left around the corner on the porch and Mr.
Chapelle ran inside the home. The police arrived within minutes
and took a statement from Mr. Chapelle. Afterward, Mr. Chapelle
was transported to Temple Hospital.
The first responding officer, Officer Matthew Lally, entered
Appellant’s home upon arrival. During a search of the first floor
of the apartment for other victims and Appellant, Officer Lally
discovered a .380 [caliber bullet] in [] Appellant’s toilet. Detective
James Sloan’s investigation revealed a trail of blood leading from
Mr. Chapelle’s apartment entrance along the porch. Detective
Sloan also found a spent .380 cartridge on the corner of the porch.
That [fired cartridge] was placed on property receipt number
3130139. After obtaining a search warrant and searching the
home, Detective Sloan recovered nine .380 [caliber bullets], eight
in the Appellant’s bedroom and one in the toilet. The nine [bullets]
were placed on property receipt number 3130140.
Tracey Brown is the next door neighbor to both Appellant
and Mr. Chapelle and was present inside Appellant’s apartment
just before the altercation. Ms. Brown, claimed to have seen a
knife in Mr. Chapelle’s hand. Ms. Brown then went upstairs in her
apartment which is adjacent to Appellant’s apartment. While
inside her apartment, Ms. Brown heard one gunshot. When asked
about the knife, Ms. Brown could not identify where the knife came
from, how Mr. Chapelle was holding it, or what he was doing with
it. When questioned by police that evening Ms. Brown did not
mention that she had seen a knife. The first time Ms. Brown
mention[ed] the knife [was] to Appellant’s lawyers. The record
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does not indicate that a knife was recovered during police
investigation.
Upon taking the stand, Appellant claim[ed] that Mr. Chapelle
emerged from his apartment to talk to Appellant. Appellant
claim[ed] that Mr. Chapelle initiated the conversation by accusing
Appellant of making threats against Mr. Chapelle’s daughter.
During the altercation, Appellant claim[ed] that Mr. Chapelle
pushed him against the door to Appellant’s apartment. Appellant
claim[ed] to have seen a knife. Appellant claim[ed] that after
pulling the knife, Mr. Chapelle charged after Appellant through the
front door to his home. According to Appellant, Mr. Chapelle
struggled with Ms. Brown to get through the door while holding
that knife in his hand. As Mr. Chapelle was trying to come through
the door, Appellant grabbed his gun and fired a shot at Mr.
Chapelle while Appellant was standing in his living room. After
firing the shot, Appellant claim[ed] to have hid[den] the gun
behind his mantle four feet above the floor and fled. Upon
investigation, Detective Sloan did not recover a gun from the
apartment or any spent shell casings in the home.
At the beginning of the trial, defense counsel raised an
objection to the use of photographs marked C1 A through J on the
grounds that he had not seen them before and they had not been
passed in discovery. The discovery letter provided by the
prosecutor indicated that the photos had been passed in
discovery. Upon inquiry from this [c]ourt, defense counsel said
that his objection was not strenuous. This [c]ourt offered defense
counsel all the time he needed to prepare using the photographs.
After a recess, defense counsel thanked this [c]ourt and
proceedings continued. During the proceedings, defense counsel
referenced material included in the discovery.
Trial Court Opinion (TCO), 8/9/17, at 2-6 (citations to the record omitted).
At the close of Appellant’s non-jury trial, the trial court convicted him of
aggravated assault and PIC. On April 7, 2016, the court sentenced Appellant
to 10 to 20 years’ incarceration for his aggravated assault conviction, and a
concurrent term of 2½ to 5 years’ incarceration for his PIC offense. Appellant
filed a timely post-sentence motion, which was denied by operation of law on
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August 15, 2016. He then filed a timely notice of appeal, and he also timely
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Therein, Appellant preserved
the following claims for our review:
[I.] The evidence was insufficient as a matter of law to convict
[Appellant] of Aggravated Assault. The evidence presented at trial
was insufficient to show that [Appellant] attempted to cause
serious bodily injury to another, or caused such injury
intentionally, knowingly or recklessly under the circumstances
manifesting an extreme indifference to the value of human life.
[II.] The evidence presented at trial was insufficient to convict
[Appellant] of aggravated assault because [Appellant] acted in
self-defense and the Commonwealth did not disprove justification
beyond a reasonable doubt.
[III.] The evidence was insufficient as a matter of law to convict
[Appellant] of [PIC]. The evidence presented at trial was
insufficient to show that [Appellant] possessed an instrument of
crime with the intent to employ it criminally.
[IV.] The verdict of guilty with respect to the charge of aggravated
assault is against the weight of the evidence to such a degree as
to shock one’s conscience and sense of justice.
[V.] The verdict of guilty with respect to the charge of [PIC] is
against the weight of the evidence to such a degree as to shock
one’s conscience and sense of justice.
[VI.] The [t]rial [c]ourt erred in permitting the introduction of
photographs marked as Commonwealth Exhibit C1 A through J,
mid-trial, which had not been provided to [the] defense in
violation of Pa.R.Crim.P[.] 573.
Appellant’s Pa.R.A.P. 1925(b) Statement, 10/5/16, at 1-2 (unnumbered). On
August 9, 2017, the trial court issued an opinion addressing these claims.
On November 27, 2017, Attorney Belli filed with this Court a petition to
withdraw from representing Appellant. That same day, counsel also filed an
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Anders brief, discussing the above-stated issues and concluding that they are
frivolous, and that Appellant has no other, non-frivolous issues he could
pursue herein. Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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 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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
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by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted).
In this case, Attorney Belli’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claim, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Belli states in his petition to withdraw that
he has supplied Appellant with a copy of his Anders brief. Additionally, he
attached to his petition to withdraw a letter directed to Appellant, in which he
informs Appellant of the rights enumerated in Nischan. Accordingly, counsel
has complied with the technical requirements for withdrawal.
In satisfying our obligation to independently review the record to
determine if Appellant’s issues are frivolous, and to ascertain if there are any
other, non-frivolous issues he could pursue on appeal, we have examined the
certified record, the briefs of the parties, and the applicable law. Additionally,
we have reviewed the well-crafted opinion of the Honorable Diana L. Anhalt of
the Court of Common Pleas of Philadelphia County. We conclude that Judge
Anhalt’s thorough, well-reasoned opinion accurately explains why the issues
presented by Appellant are frivolous. Moreover, our review of the record has
revealed no other, non-frivolous issues that Appellant could assert herein.
Accordingly, we affirm Appellant’s judgment of sentence on the grounds set
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forth by Judge Anhalt in her opinion, and grant Attorney Belli’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/18
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