Com. v. Boone, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY LAMONT BOONE,
Appellant No. 510 MDA 2018
Appeal from the Judgment of Sentence Entered March 14, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000441-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 12, 2018
Appellant, Anthony Lamont Boone, appeals from the judgment of
sentence of 72 to 144 months’ incarceration, imposed after a jury convicted
him of persons not to possess a firearm, 18 Pa.C.S. § 6105(a)(1). On appeal,
Appellant seeks to challenge the sufficiency of the evidence to sustain that
conviction. Additionally, his counsel, Matthew P. Kelly, Esq., seeks to
withdraw from representing 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.
Briefly, on December 2, 2016, Appellant engaged in an altercation with
a woman at a club called the Getaway Lounge located in West Nanticoke,
Pennsylvania. See N.T. Trial, 3/12/18, at 31. During the argument, Appellant
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pulled out a small, black handgun. Id. Two patrons of the club restrained
Appellant, and an employee was able to take the gun from him. Id. at 52.
Shortly thereafter, the police arrived and arrested Appellant. Id. He was
ultimately charged with receiving stolen property, persons not to possess a
firearm, terroristic threats, carrying a firearm without a license, recklessly
endangering another person, disorderly conduct, and harassment.
On March 12, 2018, Appellant was tried and convicted by a jury on the
charge of persons not to possess a firearm. He also subsequently pled guilty
to receiving stolen property and terroristic threats. The remaining charges
were withdrawn. On March 14, 2018, Appellant was sentenced to an
aggregate term of 72 to 144 months’ incarceration.
Appellant thereafter filed a pro se document that the trial court treated
as a timely notice of appeal. The court then ordered Appellant to file a
Pa.R.A.P. 1925(b) statement, but his counsel at that time, Joanna Bryn Smith,
Esq., did not comply with that order. Accordingly, on May 1, 2018, the trial
court issued an opinion deeming waived any issue(s) Appellant sought to raise
on appeal.
Thereafter, Attorney Smith filed with the trial court a petition to
withdraw, which the court granted on May 10, 2018. However, Attorney Smith
did not notify this Court that she had been granted leave to withdraw.
Consequently, on May 30, 2018, this Court issued a per curiam order
remanding Appellant’s case for the trial court to discern whether he was
knowingly, intelligently, and voluntarily waiving his right to counsel, or to
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appoint a new attorney to represent him. On June 15, 2018, the trial court
appointed current counsel, Attorney Kelly. That same day, the court issued a
second Rule 1925(b) order and Attorney Kelly timely complied, stating the
following, single issue for our review: “Whether the Commonwealth proved by
sufficient evidence whether [Appellant] committed the crime of Person Not to
Possess, Use, Manufacture, Control, Sell or Transfer Firearms.” Pa.R.A.P.
1925(b) Statement, 7/6/18, at 1. On August 8, 2018, the trial court issued a
Rule 1925(a) opinion deeming Appellant’s claim waived and/or meritless.
On September 6, 2018, Attorney Kelly filed a petition to withdraw and
an Anders brief, concluding that Appellant’s sufficiency-of-the-evidence claim
is 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.
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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
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted).
In this case, Attorney Kelly’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history (although counsel omits citations to the record), 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. Attorney
Kelly also explains his reasons for reaching that determination, and supports
his rationale with citations to the record and pertinent legal authority.
Attorney Kelly 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 informs Appellant of the
rights enumerated in Nischan. Accordingly, counsel has substantially
complied with the technical requirements for withdrawal. We will now
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independently review the record to determine if Appellant’s issue is frivolous,
and to ascertain if there are any other, non-frivolous issues he could pursue
on appeal.
Initially, we agree with the trial court’s conclusion that Appellant waived
his sufficiency-of-the-evidence issue by not specifying, in his Rule 1925(b)
statement, the element(s) upon which the evidence was allegedly insufficient.
See Trial Court Opinion, 8/1/18, at 2 (unnumbered) (quoting
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (“If
[an a]ppellant wants to preserve a claim that the evidence was insufficient,
then the 1925(b) statement needs to specify the element or elements upon
which the evidence was insufficient.”)).
Nevertheless, even if properly preserved, we would deem Appellant’s
issue frivolous. The offense of persons not to possess a firearm is defined, in
pertinent part, as follows:
(a) Offense defined.--
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or obtain
a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
(2)(i) A person who is prohibited from possessing, using,
controlling, selling, transferring or manufacturing a firearm
under paragraph (1) or subsection (b) or (c) shall have a
reasonable period of time, not to exceed 60 days from the
date of the imposition of the disability under this subsection,
in which to sell or transfer that person’s firearms to another
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eligible person who is not a member of the prohibited
person’s household.
18 Pa.C.S. § 6105(a). Subsection (c) of section 6105 states that a person will
be subject to the prohibition of subsection (a) if they have “been convicted of
an offense under the act of April 14, 1972 … known as The Controlled
Substance, Drug, Device and Cosmetic Act … that may be punishable by a
term of imprisonment exceeding two years.” 18 Pa.C.S. § 6105(c)(2).
Here, the Commonwealth presented evidence that in 2006, Appellant
was convicted of two counts of delivering cocaine, which is an offense under
The Controlled Substance, Drug, Device and Cosmetic Act that is punishable
by up to ten years’ incarceration. See 35 P.S. §§ 780-113(a)(30), (f)(1.1).
Therefore, the Commonwealth demonstrated that Appellant had a prior
conviction that disqualified him from lawfully possessing a firearm.
Additionally, the Commonwealth proffered substantial evidence proving
that Appellant did, in fact, possess a gun. Namely, Daniel F. Kratz, Jr.,
testified that on December 2, 2016, he was at the Getaway Lounge in West
Nanticoke when he observed Appellant get into an altercation with a woman,
during which Appellant displayed a gun. N.T. Trial at 30-31. Then, when Mr.
Kratz confronted Appellant and told him to leave the club, Appellant “pulled
[the] gun out on [Mr. Kratz].” Id. at 32. Mr. Kratz said the gun was “a little
black gun about five inches long….” Id. Mr. Kratz identified Appellant in court
as the man who possessed the gun at the Getaway Lounge. Id.
Similarly, Shane Lovenduski testified that he was at the Getaway
Lounge on December 2, 2016, where he observed Appellant arguing with a
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woman. Id. at 38. Mr. Lovenduski stated that he approached Appellant, at
which point Appellant “proceeded to pull a gun out” and point it at Mr.
Lovenduski. Id. at 39, 40. Mr. Lovenduski identified Appellant in court as the
man who possessed the gun at the Getaway Lounge. Id. at 40. Finally,
Theresa Engle Kastendieck, who is employed at the Getaway Lounge, also
testified that she saw Appellant, whom she identified in court, pull out a
“small[] gun” on the night of December 2, 2016. Id. at 48, 51. She ultimately
took the gun from Appellant after patrons of the club restrained him. Id. at
52.
Given this record, we would conclude that the evidence was sufficient to
sustain Appellant’s conviction for persons not to possess a firearm, even had
he properly preserved this claim in his Rule 1925(b) statement. Additionally,
our independent review of the record reveals no other, non-frivolous claims
that Appellant could raise herein. Consequently, we affirm his judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2018
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