Com. v. Johnson, M. ( 2019 )

J-S80033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL JOHNSON,
Appellant No. 2625 EDA 2017
Appeal from the Judgment of Sentence Entered August 2, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008265-2016
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 15, 2019
Appellant, Michael Johnson, appeals from the judgment of sentence of
2 to 4 years’ incarceration, followed by 4 years’ probation, imposed after he
was convicted, following a non-jury trial, of robbery (threatening serious
bodily injury), 18 Pa.C.S. § 3701(a)(1)(iv), possessing an instrument of crime
(PIC), 18 Pa.C.S. § 907(a), and simple assault, 18 Pa.C.S. § 2701(a). On
appeal, Appellant seeks to challenge the weight and sufficiency of the
evidence, as well as the discretionary aspects of his sentence. Additionally,
Appellant’s counsel, James Lloyd, 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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In Attorney Lloyd’s Anders brief, he summarizes the evidence
presented at Appellant’s trial, as follows:
At trial, Joseph Compton testified that he was walking to a
bar in Philadelphia on Friday, April 22, 2016[,] at approximately
7:30 p.m. Mr. Compton testified that he passed a blue GMC Envoy
parked next to the sidewalk on Belgrade Street near Lehigh
Avenue. The driver’s side front window of the Envoy was rolled
down. [Appellant], who was driving the Envoy, asked Mr.
Compton if he could ask him a question. Mr. Compton replied,
“Yes.” [Appellant] then asked if Mr. Compton had any money.
Mr. Compton relied, “No” and walked away from the Envoy. Mr.
Compton testified that the man driving the Envoy then mumbled
something.
Mr. Compton then testified that the Envoy drove forward
and pulled up next to Mr. Compton. [Appellant] then told Mr.
Compton to empty his pockets and give up his money or
[Appellant] would shoot him. [Appellant] then reached toward his
waistband and grabbed an object. Mr. Compton could not see if
the object that [Appellant] pulled from his waist area was a gun,
however, Mr. Compton testified that the object looked “gun
like[,”] [Appellant] was motioning as if it were a gun, and
[Appellant] threatened to shoot Mr. Compton. Based upon these
factors, Mr. Compton testified that he believed that the object was
a gun. However, Mr. Compton was clear in his testimony that he
could not be certain that the object was a gun.
Mr. Compton testified that this encounter took place on a
public street, underneath a railroad overpass, and that the area
was dimly lit.
After [Appellant] demanded money, Mr. Compton reversed
direction and walked back in the direction [from which] he [had
come]…. Mr. Compton did this because the Envoy was parked on
a one-way street on which there was traffic coming. Accordingly,
Mr. Compton walked against the flow of traffic and used the
oncoming traffic and one-way street to prevent the Envoy from
driving backwards in pursuit of him. As he walked away from the
Envoy, Mr. Compton called 911 on his cell phone and reported the
robbery attempt. Mr. Compton described the incident, the Envoy,
and [Appellant]. While he was talking to the 911 operator, Mr.
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Compton stated that he saw the Envoy turn onto Lehigh Avenue
travelling westbound.
Mr. Compton stated that even though he thought
[Appellant] had a gun, Mr. Compton did not believe that
[Appellant] was going to shoot him - specifically, Mr. Compton
testified that it was his “belief was that he [Appellant] wasn't going
to make good on his threat” to shoot him.
At trial, Philadelphia police officer James Martin testified that
he received the information provided by Mr. Compton over police
radio. Officer Martin was travelling eastbound on Lehigh Avenue
toward the scene of the attempted robbery when [Appellant]
passed him in the Envoy travelling westbound on Lehigh [Avenue]
approximately 9 blocks from the scene of the attempted robbery.
Officer Martin stopped [Appellant] - who was alone in the Envoy -
and detained him pending an investigation. Mr. Compton was
brought to the location by another officer and identified both the
Envoy and [Appellant].
Officer Martin recovered a black toy handgun from the
backseat of the Envoy. Although the gun was a toy, it had no
“orange cap” on it and, thus, [it] resembled a real gun.
At trial, [Appellant] testified in his own defense….
[Appellant] testified that he previously pled guilty to robbery - a
crime of crimen falsi. [Appellant] testified that he worked with
the City of Philadelphia as a mental health counselor. [Appellant]
testified that he was driving his Envoy from a client’s home to
Episcopal Hospital to see another client when he encountered Mr.
Compton walking on Belgrade Street near Lehigh Avenue.
[Appellant] testified that Mr. Compton crossed against the light
and [Appellant] honked at him. [Appellant] testified that Mr.
Compton began cursing and screaming and tapped the hood of
the Envoy.
[Appellant] testified that Mr. Compton then walked away
from the Envoy. [Appellant] testified that the front driver’s side
window was partially down and [Appellant] began to mumble at
Mr. Compton. [Appellant] testified that there was a toy black
handgun on the backset of the Envoy. [Appellant] testified that
this was the end of the encounter and that he did not attempt to
rob Mr. Compton.
[Appellant] testified that after the encounter with Mr.
Compton he drove to a gas station at a Wawa convenience store,
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went to a PNC Bank ATM machine, withdrew money from the ATM,
and then purchased gas at the Wawa on Aramingo Avenue in
Philadelphia. [Appellant] testified that he then drove back toward
the area where he encountered Mr. Compton on his way to the
hospital to see a client for work. [Appellant] testified that he was
then stopped by police approximately 30 minutes after
encountering Mr. Compton.
The parties stipulated, however, that Mr. Compton called
911 at 7:29 p.m. and stated during that phone call that he had
just been robbed and saw the Envoy turning onto Lehigh Avenue.
The parties also stipulated that Officer Martin contacted police
radio 9 minutes later at 7:38 p.m. to report that he had stopped
[Appellant] in the Envoy approximately nine blocks from the
location of the alleged attempted robbery. The parties also
stipulated that another officer contacted police radio 6 minutes
later at 7:44 p.m. to report that Mr. Compton identified
[Appellant] and the Envoy.
The parties also stipulated that PNC Bank produced records
relating to [Appellant’s] bank account relating to all transactions
on the day of the alleged attempted robbery. Those records
indicated that [Appellant] did not withdraw money at an ATM
following the encounter with Mr. Compton. The parties stipulated
that the PNC records established that the only ATM withdraw from
[Appellant’s] account took place at 10:51 a.m. at a Wawa on
Harbison Avenue in Philadelphia.
Also, the Commonwealth presented the testimony of
Michael Faleski at trial as rebuttal evidence. Mr. Faleski testified
that he is a supervisor at the agency that employed [Appellant]
on the date of his arrest. Mr. Faleski was qualified to testify as a
custodian of records for that agency and testified regarding his
review of records relating to [Appellant’s] employment on April
22, 2016. Mr. Faleski testified that [Appellant’s] time sheets
indicated that he worked from 8:30 a.m. to 5 p.m. on the day in
question. Mr. Faleski testified that [Appellant] attended a team
meeting at noon on that day. Mr. Faleski testified that [Appellant]
would have worked from noon to 8:30 p.m. that day if he were
assigned to night work. Mr. Faleski testified that two employees
were assigned to night work each day. Mr. Faleski testified that
[Appellant] was not one of the two employees assigned to night
work on April 22, 2016.
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Mr. Faleski testified that the agency had one client located
at Episcopal Hospital on April 22, 2016. Mr. Faleski testified that
[Appellant] was not the primary employee responsible for that
client. Mr. Faleski testified that [Appellant] had last seen that
client at Episcopal Hospital on April 12 or April 13, 2016. Mr.
Faleski testified that there was no reason for [Appellant] to visit
that client at Episcopal on April 22, 2016, found in the agency’s
records. Mr. Faleski testified that there was no record of
[Appellant’s] working after 5:30 p.m. on April 22, 2016.
Mr. Faleski testified that it was possible that a supervisor
told [Appellant] to visit the client at Episcopal Hospital after 5 p.m.
on April 22, 2016. However, Mr. Faleski testified that this would
have typically been handled as an emergency call by the
employees on the night shift and that there was no record of any
emergency after[-]hours call on April 22, 2016.
At trial, [Appellant] testified in his own defense in sur-
rebuttal … on March 23, 2017. [Appellant] testified that a
supervisor who no longer works for the agency called him and told
him to visit a client at Episcopal Hospital on April 22, 2016.
[Appellant] testified that the time sheets from the agency were
not accurate because he signed in and signed out at the same
time every day regardless of what time he actually performed
work. [Appellant] testified that he apparently signed out of work
at 5 p.m. on April 22, 2016, but that he does not remember
signing out and was still working when he was arrested at 7:38
p.m. Finally, [Appellant] testified that he was “a little confused”
about what time he went to the ATM on April 22, 2016.
Anders Brief at 10-17 (citations to the record omitted).
Based on this evidence, the court convicted Appellant of the above-
stated offenses. On August 2, 2017, Appellant was sentenced to a term of 2
to 4 years’ incarceration for his robbery conviction, and two years’ probation
for each of his other offenses. The probationary terms were imposed to run
consecutively to each other, and consecutively to Appellant’s incarceration
sentence. Thus, Appellant’s aggregate sentence is 2 to 4 years’ incarceration,
followed by 4 years’ probation.
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Attorney Lloyd explains that, at the sentencing hearing, Appellant’s trial
counsel orally sought leave to withdraw, which was granted. See N.T.
Sentencing, 8/2/17, at 29-30. Attorney Lloyd was then appointed to represent
Appellant. Id. at 29. After conferring with Appellant’s prior attorney and
Appellant, Attorney Lloyd decided not to file any post-sentence motions on
Appellant’s behalf. Anders Brief at 9. Instead, counsel filed a timely notice
of appeal on August 15, 2017. In response to the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,
Attorney Lloyd filed a Rule 1925(c)(4) statement of his intent to file an Anders
brief and a petition to withdraw. On December 15, 2017, the trial court filed
an opinion stating that it agreed with Attorney Lloyd’s conclusion that “there
are no meritorious, non-frivolous issues to raise on appeal.” Trial Court
Opinion, 12/15/17, at 1.
On July 23, 2018, Attorney Lloyd filed with this Court a petition to
withdraw from representing Appellant. That same day, counsel also filed an
Anders brief, discussing the following three issues that Appellant seeks to
raise on appeal:
[I.] Is the competent evidence of record legally sufficient to
support the convictions in this matter?
[II.] Was the verdict against the weight of the evidence to such a
degree that it shocks one’s conscience?
[III.] Was the sentence imposed upon … [A]ppellant by the [trial]
court manifestly excessive?
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Anders Brief at 6.1
Attorney Lloyd concludes that Appellant’s issues are frivolous, and that
he has no other, non-frivolous issues that counsel 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).
____________________________________________
1 We have reordered these issues for ease of disposition.
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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 a simple review of the record to
ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
In this case, Attorney Lloyd’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 claims, 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 Lloyd also states in his petition to withdraw
that he has supplied Appellant with a copy of his Anders brief. Additionally,
he attached a letter directed to Appellant to his petition to withdraw, in which
he informed Appellant of the rights enumerated in Nischan. Accordingly,
counsel has complied with the technical requirements for withdrawal. We will
now 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.
First, Appellant seeks to challenge the sufficiency of the evidence to
sustain his convictions.
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In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Appellant was convicted of robbery, which is defined, in pertinent part,
as follows:
(1) A person is guilty of robbery if, in the course of committing
a theft, he:
***
(iv) inflicts bodily injury upon another or threatens another
with or intentionally puts him in fear of immediate bodily
injury;
18 Pa.C.S. § 3701(a)(1)(iv).
Appellant was also convicted of PIC. “A person commits a misdemeanor
of the first degree if he possesses any instrument of crime with intent to
employ it criminally.” 18 Pa.C.S. § 907(a). “Instrument of crime” is defined,
in pertinent part, as “[a]nything used for criminal purposes and possessed by
the actor under circumstances not manifestly appropriate for lawful uses it
may have.” 18 Pa.C.S. § 907(d).
Appellant’s third offense, simple assault, is committed when a person
“attempts by physical menace to put another in fear of imminent serious bodily
injury[.]” 18 Pa.C.S. § 2701(a)(3). “Serious bodily injury” is defined as
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“[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. § 2301.
In this case, Attorney Lloyd concludes that Appellant’s sufficiency claims
regarding these three offenses are frivolous for the following reasons:
With respect to the robbery conviction, the facts favoring
[Appellant’s] sufficiency claim are: (1) nothing was taken during
the incident, and (2) Mr. Compton admit[ted] he did not believe
that [Appellant] would shoot him.
The fact that nothing was actually taken is not fatal to the
robbery conviction in the matter sub judice. Pennsylvania’s
robbery statute expressly provides that, “An act shall be deemed
‘in the course of committing a theft’ if it occurs in an attempt to
commit theft[.]” 18 Pa.C.S.[] § 3701(a)(2) (emphasis supplied).
To support a conviction for robbery in this case, the
evidence must establish - in the light most favorable to the
Commonwealth - that “in the course of committing a theft, he:
[...] threaten[ed] another with [...] immediate bodily injury[.]" 18
Pa.C.S.[] § 3701(a)(1)(iv). The threat to shoot Mr. Compton,
although not believed by the complainant, suffices to establish a
robbery. This Court has previously explained that “[w]hen
determining whether a victim has been placed in fear of serious
bodily injury, this Court uses an objective standard; therefore,
[the victim’s] subjective state of mind during the robbery is not
dispositive.” Commonwealth v. Kubis, 978 A.2d 391, 398 (Pa.
Super. 2009) (citation omitted). In other words, “this Court will
look to the nature of the defendant’s threats, and not the
subjective state of mind of the victim.” Id. (citation omitted).
Accordingly, Mr. Compton’s belief that [Appellant] would not
follow through with his threat to shoot him is not fatal to the
robbery conviction returned by the trial court.
With respect to the conviction for [PIC], the fact supporting
[Appellant’s] sufficiency claim is that the police recovered only a
toy gun from his car shortly after the incident. In
Commonwealth v. Brown, 23 A.3d 544, 561 (Pa. Super. 2011),
this [C]ourt was faced with the same claim and apposite facts. …
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The gun that the appellant in Brown pointed at the complainant
during a robbery turned out to be a toy. However, this Court held
that the toy gun constituted an “instrument of crime” under the
definition [provided in section 907(d)]. [Id.] The toy gun in
Brown had tape on its barrel and had been colored with a black
magic marker. Id. This Court found that that was evidence that
the toy gun had been “specially adapted for criminal use.” [Id.]
Even if the appellant in Brown had not altered the toy gun,
this Court held unequivocally that “[t]he lawful uses of a toy gun
do not include utilizing it in a robbery, particularly where it is
obviously used to convey the impression that it is a real gun.”
[Id.] Thus, this Court in Brown concluded that the toy gun
possessed by the appellant therein while he demanded money
[was] sufficient to establish that he possessed [an] instrument of
crime for the purpose of employing it criminally. [Id.]
Accordingly, the toy gun here (which had no orange cap on
it when recovered by police) is sufficient under controlling
decisional authority to sustain the conviction for [PIC] under the
facts presented at trial in this matter.
Finally, with respect to the simple assault conviction, the
fact favoring [Appellant’s] sufficiency claim is that Mr. Compton
admits he did not believe that [Appellant] would shoot him. …
[S]ubsection [2701(a)(3)] of the simple assault statute does not
require that the fear actually occur. Rather it criminalizes the
attempt to place someone in such fear, notwithstanding the result
of the threat. In the matter sub judice, the threat to shoot Mr.
Compton could certainly place a reasonable person in fear of
imminent serious bodily injury. The circumstances described by
Mr. Compton are not consistent with a joke or someone who does
not intend to carry through with the threat. The presence of a toy
gun in [Appellant’s] car, in conjunction with a demand for money
on a dimly lit Philadelphia street at night[,] renders the context of
this threat sufficient to support the misdemeanor conviction. The
fact that Mr. Compton, curiously, did not believe that [A]ppellant
would “make good” on the threat to shoot does not render the
[evidence] legally inadequate under the circumstances of the
case.
Anders Brief at 43-47.
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Having reviewed the record and the case law relied upon by Attorney
Lloyd, we agree with his conclusion that Appellant’s sufficiency claims are
frivolous.
Likewise, we discern no arguable merit to Appellant’s second issue
challenging the weight of the evidence to support his convictions. Initially,
Appellant did not preserve his weight claim orally at trial or sentencing, or in
a written pre- or post-sentence motion. Pa.R.Crim.P. 607(A) (directing that
a claim that the verdict was against the weight of evidence must be raised
before the trial court orally or in a written motion prior to sentencing, or in a
post-sentence motion). Consequently, Appellant’s challenge to the weight of
the evidence is waived. See Commonwealth v. Bryant, 57 A.3d 191, 196
(Pa. Super. 2012) (“Failure to challenge the weight of the evidence presented
at trial in an oral or written motion prior to sentencing or in a post-sentence
motion will result in waiver of the claim.”) (citation omitted).
In Appellant’s third issue, he argues that his sentence is manifestly
excessive. Again, we must deem this claim waived based on Appellant’s
failure to raise it at the sentencing hearing, or in a post-sentence motion. See
Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super. 2004) (“It is
well settled that an [a]ppellant’s challenge to the discretionary aspects of his
sentence is waived if the [a]ppellant has not filed a post-sentence motion
challenging the discretionary aspects with the sentencing court.”) (citation
omitted). Notwithstanding waiver, Attorney Lloyd points out that the
sentences imposed by the court for each of Appellant’s three convictions were
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below the mitigated range of the sentencing guidelines. See Anders Brief
at 29-30. Thus, it would be frivolous for Appellant to assert that the court
imposed an excessive sentence, even had he preserved this claim for our
review.
In sum, we agree with Attorney Lloyd that the three issues Appellant
seeks to raise on appeal are either waived and/or frivolous. Additionally, our
review of the record reveals no other, non-frivolous claims that Appellant
could present herein. Consequently, we affirm his judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Bowes joins this memorandum.
Judge Nichols did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/19
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