Com. v. Garrett, I. ( 2015 )

J-S63033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ISIAH GARRETT,
Appellant No. 192 MDA 2014
Appeal from the Judgment of Sentence April 5, 2013
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002964-2011
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 14, 2015
Appellant, Isiah Garrett, appeals from the judgment of sentence
imposed following his jury conviction of second-degree murder, robbery (two
counts), conspiracy to commit robbery, simple assault, and recklessly
endangering another person.1 Counsel for Appellant has petitioned to
withdraw on the ground that Appellant’s issues on appeal are wholly
frivolous.2 We grant counsel’s petition to withdraw and affirm the judgment
of sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903(c), 2701(a)(3), and 2705,
respectively.
2
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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This case arises from the shooting death of Kendrell Washington. The
relevant facts and procedural history are as follows. On November 16,
2010, at approximately 8:30 p.m., Mr. Washington and Paris Stanback
agreed to meet to purchase and smoke a $5.00 bag of marijuana. They met
at a convenience store at the corner of 16th and Market Streets in
Harrisburg. As the men walked north on 16th street, Appellant approached
them holding a revolver. He pointed the gun at them and demanded that
they “give up the weed.” (N.T. Trial, 2/26/13, at 67). He ordered them to
“get the fuck on the ground.” (Id.). Mr. Washington told Appellant that
they did not have any marijuana and he and Stanback dropped to the
ground. Mr. Washington reached into his pocket and gave Appellant his cell
phone. Mr. Stanback closed his eyes and heard the sound of a gun clicking.
Appellant fired a single bullet, which entered the back of Mr. Washington’s
head, killing him. Appellant said “did I sleep that little nigger[?]” and ran
from the scene. (Id. at 70). Witness Veronica Vinson was walking nearby
on 16th street at that time. She heard a gunshot and then observed three
men run past her.
On December 10, 2010, police officers executed a search warrant on
Appellant’s residence. They recovered two revolvers in close proximity to
ammunition from his bedroom. On February 4, 2011, police showed Ms.
Vinson a photo array, and she identified Appellant as the last of the three
men that ran past her on the night of the incident.
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On February 25, 2013, Appellant proceeded to a jury trial. On
February 28, 2013, the jury found him guilty of the above-stated offenses.
On April 5, 2013, the trial court sentenced Appellant to a term of life
imprisonment. Appellant filed a direct appeal, which this Court dismissed on
June 26, 2013 for failure to file a docketing statement. See Pa.R.A.P. 3517.
On August 16, 2013, Appellant filed a pro se petition for writ of habeas
corpus, which the court treated as a Post-Conviction Relief Act (“PCRA”)3
petition. The court appointed counsel, who filed a supplemental petition
seeking reinstatement of Appellant’s direct appeal rights. On January 14,
2014, the trial court granted Appellant’s petition and reinstated his right to
file a direct appeal nunc pro tunc. This timely appeal followed.4
On June 20, 2014, counsel for Appellant filed an Anders brief and a
petition to withdraw as counsel. On July 11, 2014, because counsel’s
petition did not fully comply with the technical requirements of Anders, this
Court issued a per curiam order directing him to file an amended petition.
On July 22, 2014, counsel filed an amended petition to withdraw stating his
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3
42 Pa.C.S.A. §§ 9541-46.
4
In response to the trial court’s concise statement order, counsel filed a
statement of intent to file an Anders/McClendon brief in lieu of a concise
statement. See Pa.R.A.P. 1925(c)(4). On March 24, 2014, the court filed a
letter in lieu of a Rule 1925(a) opinion, stating that, in accordance with its
general practice when counsel files such statement, it would refrain from
producing an opinion unless directed to do so by this Court. (See Trial Court
Letter, 3/24/14, at 1); see also Pa.R.A.P. 1925(a).
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belief that this appeal is wholly frivolous. (See Amended Petition to
Withdraw as Counsel, 7/22/14, at iv ¶ 15). Counsel has submitted to this
Court a copy of his letter to Appellant, enclosing a copy of the Anders brief,
informing him of the petition to withdraw, and advising him of his right to
retain new counsel or proceed with the appeal pro se. (See Motion to
Withdraw as Counsel, 6/20/14, at iv ¶ 14, Exhibit A). Appellant has not
responded.
[I]n the Anders brief that accompanies . . . 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.
Santiago, supra at 361.
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel to either comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
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Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).
In the instant case, counsel has complied with the Anders and
Santiago requirements. He has submitted a brief that summarizes the
case, (see Anders Brief, at 9-17); referred to anything that might arguably
support the appeal, (see id. at 18-19, 21-22); and set forth his reasoning
and conclusion that the appeal is frivolous, (see id. at 20-22). See
Santiago, supra at 361. Counsel has filed a petition to withdraw, sent
Appellant a letter advising that he concluded that there are no non-frivolous
issues, provided him with a copy of the Anders brief, and notified him of his
right to retain new counsel or proceed pro se. Because counsel’s petition
and brief satisfy the requirements of Anders and Santiago, we will
undertake our own review of the appeal to determine if it is wholly frivolous.
See O’Malley, supra at 1266.
The Anders brief raises two issues for our review challenging the
sufficiency of the evidence to support Appellant’s second-degree murder
conviction.
A. Whether the evidence at trial was insufficient to support
Appellant’s conviction for second-degree murder because the
Commonwealth failed to establish that [Appellant] was the actor
who shot and killed Kendrell Washington during the course of an
alleged robbery?
B. Whether the evidence at trial was insufficient, as a matter
of law, to support Appellant’s conviction for second-degree
murder because the Commonwealth failed to establish that
[Appellant] intended to kill Kendrell Washington?
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(Anders Brief, at 8).5
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citation
omitted).
In both of his issues on appeal, Appellant challenges the sufficiency of
the evidence to support his second-degree murder conviction. (See Anders
Brief, at 19-22). He first argues that the Commonwealth failed to establish
that he was the individual who shot Mr. Washington because there was no
credible evidence identifying him as the shooter. (See id. at 19). He next
argues that the evidence was insufficient because the Commonwealth failed
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5
We will address these issues together because they are related.
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to prove that he intended to kill Mr. Washington during the course of the
robbery. (See id. at 21-22). These issues do not merit relief.
The Pennsylvania Crimes Code defines the crime of second-degree
murder as follows:
(b) Murder of the second degree.—A criminal homicide
constitutes murder of the second degree when it is committed
while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.
18 Pa.C.S.A. § 2502(b).
The predicate felony in the instant matter is robbery, graded as a
felony of the first degree. See 18 Pa.C.S.A. § 3701(a)(1)(i), (b)(1). The
Code defines the offense of robbery, in relevant part, as follows:
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon
another;
* * *
(2) An act shall be deemed “in the course of committing a
theft” if it occurs in an attempt to commit theft or in flight after
the attempt or commission.
18 Pa.C.S.A. § 3701(a)(1)(i), (2).
Murder of the second degree is a criminal homicide
committed while a defendant was engaged as a principal or an
accomplice in the perpetration of a felony. 18 Pa.C.S.A. §
2502(b). 18 Pa.C.S.A. § 2502(d) defines perpetration of a
felony as:
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[t]he act of the defendant in engaging in or
being an accomplice in the commission of, or an
attempt to commit, or flight after committing, or
attempting to commit robbery, rape, or deviate
sexual intercourse by force or threat of force, arson,
burglary or kidnapping.
18 Pa.C.S.A. § 2502(d).
The malice or intent to commit the underlying crime is
imputed to the killing to make it second-degree murder,
regardless of whether the defendant actually intended to
physically harm the victim.
* * *
When an actor engages in one of the
statutorily enumerated felonies and a killing occurs,
the law, via the felony-murder rule, allows the finder
of fact to infer the killing was malicious from the fact
the actor was engaged in a felony of such a
dangerous nature to human life because the actor,
as held to the standard of a reasonable man, knew
or should have known that death might result from
the felony.
. . . [O]ur Supreme Court [has] explained that not only the
killer, but all participants in a felony . . . are equally guilty
of felony murder when a killing by a felon occurs.
The statute defining second degree murder does not
require that a homicide be foreseeable; rather, it is only
necessary that the accused engaged in conduct as a principal or
an accomplice in the perpetration of a felony. Whether evidence
sufficiently indicates that a killing was in furtherance of a
predicate felony can be a difficult question. The question of
whether the killing was in furtherance of the conspiracy is a
question of proof for the jury to resolve. It does not matter
whether the appellant anticipated that the victim would be killed
in furtherance of the conspiracy. Rather, the fact finder
determines whether the appellant knew or should have known
that the possibility of death accompanied a dangerous
undertaking.
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Commonwealth v. Lambert, 795 A.2d 1010, 1022-23 (Pa. Super. 2002),
appeal denied, 805 A.2d 521 (Pa. 2002) (case citations omitted; emphases
added); see also Commonwealth v. Olds, 469 A.2d 1072, 1076 (Pa.
Super. 1983) (“The malice required for felony-murder is not a specific intent
to kill.”) (citation omitted).
Here, Paris Stanback testified that he was walking down the street
with Washington when a man with a revolver in his hand demanded that
they give him marijuana, and ordered them to the ground. (See N.T. Trial,
2/26/13, at 65-67). Mr. Stanback testified that he observed Washington
give the man his cell phone, and Stanback closed his eyes and heard the
sound of a gun clicking, followed by the sound of a single gunshot. (See id.
at 68-70). He stated that he heard the man say “did I sleep that little
nigger[?]” and observed him flee the scene. (Id. at 70; see id. at 71).
Although Stanback acknowledged that he purposefully did not focus on the
gunman’s face and that he closed his eyes during most of the episode
because he feared for his life, he also testified that the man did not have
anything covering his head or face and that he appeared to be acting alone.
(See id. at 66, 68-69, 78).
Veronica Vinson testified that on the night of the incident at
approximately 8:40 p.m., she was walking home from a bar traveling north
on 16th street. (See id. at 142-43). She observed three people standing
one block north of her and then heard a voice shout “get the fuck down on
the ground.” (Id. at 145; see id. at 144, 150-51). She heard the sound of
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a single gunshot, and observed three men run past her at a distance of
approximately six to seven feet away. (See id. at 146-47, 157). She
testified that she was able to see the men’s faces as they ran past her and
she made eye contact with all three men. (See id. at 148, 164). In a photo
array presented to her, she identified Appellant as the third man in the
group to run past her immediately after she heard the gun shot. (See id. at
156-57, 159, 165).
Tyrek Smith, Appellant’s first cousin, testified that on the night of the
incident, Appellant admitted that:
he seen [sic] two guys that looked like they were doing a
transaction to him and he wanted to go rob them and he laid
both of them down and he tried I guess to shoot and the gun
jammed. So he tried to hit the guy in the back of the head and
the gun accidentally went off.
(N.T. Trial, 2/27/13, at 200-01). Smith further testified that Appellant
directed their friend Sayid Hall not to use Washington’s cell phone because
he obtained it during the robbery. (See id. at 206, 220).
Corporal Shawn Williams testified that police recovered two revolvers
in close proximity to ammunition from Appellant’s bedroom during the
search of his residence. (See id. at 240-41, 243-44). Ballistics analysis
showed that one of the revolvers was compatible with the bullet that killed
Mr. Washington. (See id. at 250-52, 255).
Maurice Jackson was the sole defense witness at trial and he stated
that he had shared a prison cell with Appellant’s friend, Sayid Hall. (See
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N.T. Trial, 2/28/13, at 323). Jackson testified that Hall admitted to shooting
Mr. Washington in the back of the head. (See id. at 324).
Based on the foregoing, and viewing the evidence in the light most
favorable to the Commonwealth, see Cahill, supra at 300, we conclude
that Appellant’s challenges to the sufficiency of the evidence lack merit. The
record fully supports the jury’s finding that Appellant was involved in the
armed robbery of Stanback and Washington when Washington’s killing
occurred. Appellant’s assertion that he was not the individual who actually
shot Mr. Washington is immaterial given the overwhelming evidence that he
was actively engaged in robbing Stanback and Washington, resulting in
Washington’s death. See Lambert, supra at 1022-23; see also 18
Pa.C.S.A. § 2502(b) (permitting conviction where individual acted as
principal or accomplice in felony). Likewise, Appellant’s argument with
respect to his lack of intent to kill Washington is meritless; as stated above,
the intent to commit the underlying robbery is imputed to the killing to make
it second-degree murder, regardless of whether Appellant actually intended
to physically harm Washington. See Lambert, supra at 1022-23.
Accordingly, Appellant’s challenges to the sufficiency of the evidence do not
merit relief. Furthermore, after independent review of the record, we
determine that there are no other non-frivolous bases for appeal, and this
appeal is “wholly frivolous.” O’Malley, supra at 1266.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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