Com. v. Maxwell, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JEFFERY SCOTT MAXWELL
Appellant No. 2014 WDA 2015
Appeal from the Judgment of Sentence dated November 23, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000196-2015
BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 14, 2016
Appellant, Jeffery Scott Maxwell, appeals from the judgment of
sentence of 60 days’ incarceration, imposed following a jury trial, where he
was found guilty of possession of marijuana,1 a misdemeanor, and various
summary traffic offenses: driving while license is suspended or revoked,
driving without a license, driving through a stop sign, and illegally parking in
an intersection.2 With this appeal, appellate counsel has filed a petition to
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(31).
2
75 Pa.C.S. § 1543(b)(1), 75 Pa.C.S. § 1501(a), 75 Pa.C.S. § 3323(b), and
75 Pa.C.S. § 3353(a)(1)(iii), respectively.
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withdraw and an Anders3 brief, stating that the appeal is wholly frivolous.
After careful review, we affirm the judgment of sentence and grant appellate
counsel’s petition to withdraw.
During the early morning hours of December 4, 2014, an officer from
the Corry Police Department saw a black Ford truck driving eastbound on
Main Street in Corry, Pennsylvania. N.T., 10/20/15, at 24. Before making a
left turn on to Pennsylvania Avenue, the truck failed to come to a complete
stop at a stop sign. The officer stopped the truck and asked Appellant to
provide his license, registration, and proof of insurance, but Appellant did
not comply. Id. at 26, 28-29. When the officer repeated his request,
Appellant responded, “You got me, I’m drunk.” Id.
Appellant had a suspended license at the time of the traffic stop. Ex.
Commonwealth-2; N.T., 10/20/15, at 41, 105. The officer asked Appellant
to exit the vehicle, conducted a pat down, and found a plastic bag of what
appeared to be marijuana in Appellant’s jacket. Id. at 31. Before the officer
could ask Appellant about the contents of the bag, Appellant told the officer
that the substance was marijuana, which forensic testing later confirmed.
Id. at 31, 85, 91.
Following a jury trial, Appellant was found guilty of the offenses listed
above and sentenced to 60 days’ incarceration after a sentencing hearing on
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3
Anders v. California, 386 U.S. 738 (1967).
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November 23, 2015. Appellant did not file a post-trial or post-sentence
motion asserting that the verdict was against the weight of the evidence.
Trial Court Opinion, 1/11/16, at 1. This timely direct appeal with appointed
counsel followed.
On May 18, 2016, appellate counsel sent a letter to Appellant,
informing him that she intended to file a petition for leave to withdraw.
Appellate counsel filed an Anders Brief on May 19, 2016. On that same
day, appellate counsel also filed a petition to withdraw as counsel. Appellant
has not filed a pro se response to the petition to withdraw as counsel. On
August 1, 2016, the Commonwealth sent a letter to this Court indicating that
it did not intend to file a responsive brief.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (internal citation omitted). An Anders brief shall comply with the
requirements set forth by the Supreme Court of Pennsylvania in
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009):
[W]e hold that in 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 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.
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Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
meet the following obligations to his or her client.
Counsel must also 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 the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004)). Finally,
“this Court must conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnotes and citations omitted).
In this appeal, we observe that appellate counsel’s May 18, 2016
correspondence to Appellant provided a copy of the Anders Brief to
Appellant and advised Appellant of his right either to retain new counsel or
to proceed pro se on appeal to raise any points he deems worthy of the
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court’s attention. Further, appellate counsel’s Anders Brief, at 4-5,
complies with prevailing law in that counsel has provided a procedural and
factual summary of the case with references to the record. Appellate
counsel additionally advances relevant portions of the record that arguably
support Appellant’s claims on appeal. Id. at 5-6. Ultimately, appellate
counsel cites her reasons and conclusion that Appellant’s “case presents no
non-frivolous issues for review.” Id. at 7. Counsel’s Anders brief and
procedures therefore comply with the requirements of Santiago and
Orellana. We therefore proceed to conduct an independent review to
ascertain whether the appeal is indeed wholly frivolous.
The Anders Brief, at 3, raises one issue for review on appeal:
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.
Rule 607(A) of the Rules of Criminal Procedure provides:
A claim that the verdict was against the weight of the evidence
shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before sentencing;
or
(3) in a post-sentence motion.
The trial court held that, in light of Appellant’s failure to file a post-trial
or post-sentence motion raising a weight-of-the-evidence claim, Appellant
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did not preserve this claim. Trial Court Opinion, 1/11/16, at 2. Appellant
contends that he preserved the claim because, after the Commonwealth
rested, his trial counsel made an oral motion to dismiss the charges for
failure to establish a prima facie case. Anders Brief, at 5 (citing N.T.,
10/20/15, at 94).4 Rule 607, however, requires the defendant to
demonstrate that “the verdict” is against the weight of the evidence. Since
the verdict occurs after a full trial, see Pa.R.Crim.P. 622(A) (“a verdict shall
be rendered in all non-jury cases within 7 days after trial”), the defendant
cannot raise a weight-of-the-evidence claim during trial. Thus, trial
counsel’s motion “for dismissal for lack of established probable cause or
prima facie case for the charges against [Appellant],” N.T., 10/20/15, at 94,
did not raise a weight-of-the-evidence claim under Rule 607.
As noted in the Anders Brief, at 5, “[i]n his timely [Pa.R.A.P.] 1925(b)
Statement [of matters complained of on appeal] filed on December 29,
2015, [] Appellant reiterated his argument that the weight of the evidence
failed to support the convictions.” To the extent that Appellant contends
that the inclusion of this claim in his Pa.R.A.P. 1925(b) Statement is
sufficient to preserve it, we disagree. “The fact that appellant raised the
[weight-of-the-evidence] issue in a statement of matters complained of on
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4
The Anders Brief concludes that trial counsel’s oral motion preserved a
weight-of-the-evidence claim, but that, in light of ample evidence as to the
charges here, including Appellant’s own admissions, the claim was meritless.
Anders Brief, at 5-7.
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appeal and that the court then filed an opinion pursuant to Rule 1925(a)
does not render the claim reviewable.” Commonwealth v. Causey, 833
A.2d 165, 173 (Pa. Super. 2003).
Based on the foregoing, we find Appellant’s claim waived. In addition,
we have reviewed the certified record consistent with Flowers, 113 A.3d at
1250, and have discovered no additional arguably meritorious issues.
Accordingly, we grant appellate counsel’s petition to withdraw and affirm the
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
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