Com. v. Gibbs, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
AMIN H.H. GIBBS :
:
Appellant : No. 1711 EDA 2016
Appeal from the Judgment of Sentence April 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004779-2013,
CP-51-CR-0004781-2013
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 28, 2018
Amin H.H. Gibbs appeals nunc pro tunc from the judgment of sentence
imposed April 8, 2015, in the Philadelphia County Court of Common Pleas.
The trial court sentenced Gibbs to an aggregate term of 17½ to 35 years’
imprisonment following his jury conviction of charges of aggravated assault,
persons not to possess firearms (two counts), and carrying a firearm on a
public street in Philadelphia1 in two consolidated cases. Contemporaneous
with this appeal, Gibbs’s counsel has filed a petition to withdraw from
representation and an Anders brief. See Anders v. California, 386 U.S.
738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). The
Anders brief addresses four issues: (1) the sufficiency of the evidence; (2)
the weight of the evidence; (3) the court’s denial of a motion to suppress; and
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1 18 Pa.C.S. §§ 2702(a), 6105, and 6108, respectively.
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(4) the discretionary aspects of sentencing. Moreover, Gibbs submitted a pro
se filing raising additional arguments on appeal. For the reasons below, we
affirm the judgment of sentence and grant counsel’s petition to withdraw.
The pertinent facts and procedural history underlying this appeal are as
follows. On October 24, 2012, Gibbs had an argument with Devoun Handy
outside West Park Homes, a housing project located at 300 Busti Street in
West Philadelphia. During the altercation, Gibbs pulled out two firearms and
began shooting at Handy. Handy fled, and escaped unharmed.
In the early morning hours of November 17, 2012, another shooting
incident occurred on Holden Street outside West Park Homes, where Handy
was attending a party. While Handy was standing outside with several others,
a Chevrolet Impala approached them and an individual in the passenger seat
started firing a gun in their direction. One of the people in the group, Zykia
Sanders, was fatally struck by a bullet. In statements to the police, witnesses
identified Gibbs as the shooter in both incidents.
On November 23, 2012, police went to arrest Gibbs at the home of his
girlfriend, Rasheedah Malone. When Malone answered the door, the arresting
officer heard Gibbs run upstairs. The officer ordered Gibbs to return
downstairs. Gibbs complied and was taken into custody. The police
subsequently secured and executed a search warrant at the residence. They
recovered from the second-floor front bedroom a .22-caliber revolver, a
sawed-off shotgun, a black iPhone in a blue rubber case, and mail addressed
to Gibbs.
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The Commonwealth charged Gibbs with aggravated assault, persons not
to possess firearms, carrying a firearm on a public street in Philadelphia, and
related offenses in connection with the October 24, 2012, shooting (Docket
No. 4781-2013); murder and related offenses in connection with the
November 17, 2012, shooting (Docket No. 4782-2013); and persons not to
possess firearms and prohibited offensive weapons with respect to the
firearms recovered during the November 23, 2012, search of Malone’s house
(Docket No. 4779-2013). On October 20, 2014, while represented by counsel,
Gibbs filed a pro se motion to suppress. The trial court held a hearing and
denied the suppression motion on December 2, 2014.2 Following a
consolidated trial, a jury convicted Gibbs at Docket No. 4781-2013 of
aggravated assault, persons not to possess firearms, and carrying a firearm
on a public street in Philadelphia. At Docket No. 4779-2013, the jury convicted
Gibbs of the separate charge of persons not to possess firearms. Gibbs was
acquitted of all other charges.
On April 8, 2015, the trial court sentenced Gibbs to an aggregate term
of 17½ to 35 years’ imprisonment. Gibbs filed a timely post-sentence motion
challenging the weight of the evidence. The motion was denied by operation
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2 There is no indication in the record that counsel ever filed a written motion
to suppress. At the commencement of the suppression hearing, the court
asked defense counsel to state the basis for the suppression motion, and
counsel raised two issues: (1) lack of probable cause supporting the search
warrant for Malone’s residence, and (2) the lawfulness of Gibbs’ arrest. See
N.T., 12/2/2014, at 3-4.
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of law on August 11, 2015. On February 5, 2016, Gibbs filed a timely petition
pursuant to the Post Conviction Relief Act3 (“PCRA”), requesting reinstatement
of his direct appeal rights nunc pro tunc. The PCRA court reinstated Gibbs’
direct appeal rights on May 6, 2016. This timely appeal followed.4
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any of
the substantive issues raised on appeal. Commonwealth v. Goodwin, 928
A.2d 287, 290 (Pa. Super. 2007) (en banc). Here, our review of the record
reveals counsel has complied with the requirements for withdrawal outlined in
Anders, supra, and its progeny. Notably, counsel completed the following:
(1) he filed a petition for leave to withdraw, in which he states he has made a
conscientious examination of the record and concludes the appeal is wholly
frivolous; (2) he filed an Anders brief pursuant to the dictates of
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); (3) he
furnished a copy of the Anders brief to Gibbs; and (4) he advised Gibbs of
his right to retain new counsel or proceed pro se. Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc).
Therefore, we proceed to an examination of the issues addressed in the
Anders brief. Moreover, because Gibbs filed a pro se response to counsel’s
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3 42 Pa.C.S. §§ 9541-9546.
4 On June 14, 2016, the trial court ordered Gibbs to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After
receiving an extension of time, Gibbs’ counsel filed a Rule 1925(c)(4)
statement of intent to file an Anders brief in lieu of a concise statement.
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request to withdraw, in which he raised several additional claims he believes
are meritorious, we must also determine whether those claims are frivolous.
See Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015)
(“[W]hen an appellant, either acting pro se or through private counsel, files a
response to the Anders brief, our independent review is limited to those
issues raised in the Anders brief. We then review the subsequent pro se or
counseled filing as we do any advocate’s brief.”).5
The first issue identified in the Anders brief challenges the sufficiency
of the evidence supporting Gibbs’ convictions. See Anders Brief at 10.
Our standard of review for a challenge to the sufficiency of the evidence
is well-settled:
Whether sufficient evidence exists to support the verdict is
a question of law; our standard of review is de novo and our
scope of review is plenary. When reviewing the sufficiency
of the evidence, this Court is tasked with determining
whether the evidence at trial, and all reasonable inferences
derived therefrom, are sufficient to establish all elements of
the offense beyond a reasonable doubt when viewed in the
light most favorable to the Commonwealth [.] The evidence
need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence
presented.
Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016), appeal
denied, 167 A.3d 698 (Pa. 2017) (internal citations and quotation marks
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5To the extent Gibbs’ pro se issues are related to the claims addressed in the
Anders brief, we will review them together.
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omitted).
The Pennsylvania Crimes Code defines aggravated assault in relevant
part as follows:
A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life;
* * *
(4) attempts to cause or intentionally or knowingly causes
bodily injury to another with a deadly weapon[.]
18 Pa.C.S. § 2702(a)(1), (4). Further, the Crimes Code sets forth the
following definitions:
“Bodily injury.” Impairment of physical condition or
substantial pain.
“Deadly weapon.” Any firearm, whether loaded or
unloaded, or any device designed as a weapon and capable
of producing death or serious bodily injury, or any other
device or instrumentality which, in the manner in which it is
used or intended to be used, is calculated or likely to
produce death or serious bodily injury.
“Serious bodily injury.” Bodily 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. “For aggravated assault purposes, an ‘attempt’ is found
where the accused, with the required specific intent, acts in a manner which
constitutes a substantial step toward perpetrating a serious bodily injury upon
another.” Commonwealth v. Gruff, 822 A.2d 773, 776 (Pa. Super. 2003),
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appeal denied, 863 A.2d 1143 (Pa. 2004). “[I]n instances where the
defendant has both drawn and fired (or drawn and misfired) a gun, we have
consistently held that an aggravated assault occurred.” Commonwealth v.
Matthews, 870 A.2d 924, 929 (Pa. Super. 2005) (en banc).
The Crimes Code defines the offense of carrying firearms on public
streets or public property in Philadelphia as follows:
No person shall carry a firearm, rifle or shotgun at any time
upon the public streets or upon any public property in a city
of the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section
6106(b) of this title (relating to firearms not to be carried
without a license).
18 Pa.C.S. § 6108.
The offense of persons not to possess firearms is defined as follows:
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.
18 Pa.C.S. § 6105(a)(1). When a prohibited item is not discovered on a
defendant’s person, or in his actual possession, the Commonwealth may prove
the defendant had constructive possession of the item:
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an inference
arising from a set of facts that possession of the
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contraband was more likely than not. We have
defined constructive possession as conscious
dominion. We subsequently defined conscious
dominion as the power to control the contraband and
the intent to exercise that control. To aid application,
we have held that constructive possession may be
established by the totality of the circumstances.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super.
2012), appeal denied, [] 63 A.3d 1243 ([Pa.] 2013)
(internal quotation marks and citation omitted).
“Additionally, it is possible for two people to have joint
constructive possession of an item of contraband.”
Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa. Super.
2008), appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013), appeal
denied, 78 A.3d 1090 (Pa. 2013). “An intent to maintain a conscious dominion
may be inferred from the totality of the circumstances, and circumstantial
evidence may be used to establish a defendant’s possession of drugs or
contraband.” Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa. Super.
2013), appeal denied, 77 A.3d 636 (Pa. 2013) (citation omitted).
Here, at trial, the Commonwealth produced the following evidence to
support Gibbs’ conviction for aggravated assault. Devoun Handy gave a
statement to police in which he described the October 24, 2012, shooting.
Handy stated he and Gibbs “had words at 300 Busti Street. [Gibbs] came
back out of the building with two handguns and he told me to stop playing
with him. I started backing up and he started shooting at me. I ran and he
ran off.” N.T., 12/8/2014, at 52. Anthony Wells also told the police he saw
Gibbs shoot at Handy on October 24, 2012. See N.T., 12/5/2014, at 17.
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Following the November 17, 2012, shooting, several witnesses gave
statements to the police indicating they were aware Gibbs had attempted to
shoot Handy three weeks earlier at 300 Busti Street. See N.T., 12/4/2014,
at 152-152, 243; N.T., 12/5/2014, at 41-42.
Other evidence corroborated the witnesses’ statements. At around 5:10
p.m. on October 24, 2012, police received multiple reports of a shooting. The
FBI’s analysis of cell phone records placed Gibbs near the location of the
shooting on that date. Further, Gibbs sent several text messages shortly after
the shooting indicating he was the perpetrator and he was hiding from the
police. For instance, Gibbs sent the following text messages to a contact listed
as “Nye-Nye” the night of the shooting: “My name in the air. Heavy. Like on
the tip. 5-0. No.”; “He been asking for it. He begged for that. He lucky my
shit locked up on me.”; “Last thing do the cops know my handle?” N.T.,
12/5/2014, at 99-104. Nye-Nye also sent Gibbs a text message stating: “UK
. . . anything I hear and who is snitching, I got your back, cuz. Just be safe
out there, please, and I love you.” Id. at 104-105. On October 28, 2012,
Gibbs sent the following text message: “They talking still, Nye-Nye?” Nye-
Nye responded: “Nah, they not talking. I don’t think the cops looks for you
either. And Winky says call her.” Id. at 105-106.
Based upon the witnesses’ statements and the text messages, the jury
could conclude that Gibbs used a firearm in an attempt to cause serious bodily
injury to Devoun Handy during the October 24, 2012, incident. Therefore, we
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find Gibbs’ aggravated assault conviction was supported by sufficient
evidence.
Moreover, Gibbs stipulated to the fact that his prior record disqualified
him from possessing a firearm. Accordingly, the Commonwealth presented
sufficient evidence to support his convictions for persons not to possess a
firearm and carrying a firearm on a public street in Philadelphia, in connection
with the October 24, 2012, incident.
With respect to the conviction of persons not to possess firearms arising
from Gibbs’ November 23, 2012, arrest and the search of Rasheedah Malone’s
house, we note the arresting officer testified that he heard Gibbs run upstairs
to the second-floor front bedroom when Malone answered the door. Police
recovered a .22-caliber revolver from a shelf above the closet in that bedroom,
where Malone stated Gibbs kept the gun. Anthony Wells had previously told
police that Gibbs used a .22-caliber firearm to shoot at Handy on October 24,
2012. Additionally, the police found mail addressed to Gibbs in the bedroom,
which indicated he was an occupant of the room. This evidence was sufficient
to prove Gibbs had constructive possession of the revolver, and, consequently,
to sustain his conviction for persons not to possess firearms at Docket No.
4779-2013. Accordingly, we agree with counsel’s assessment that any
challenge to the sufficiency of the evidence supporting Gibbs’ convictions is
frivolous.
Next, the Anders brief presents a claim that the trial court improperly
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denied Gibbs’ challenge to the weight of the evidence underlying his
convictions. See Anders Brief at 13.
We review a claim that a verdict was against the weight of the evidence
according to the following principles:
“[A]n allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.”
Commonwealth v. Sullivan, [] 820 A.2d 795, 805-06 (Pa.
Super. 2003). “Appellate review of a weight claim is a
review of the exercise of discretion, not of the underlying
question of whether the verdict is against the weight of the
evidence.” Commonwealth v. Widmer, [] 744 A.2d 745,
753 (Pa. 2000). “[A] new trial should be awarded when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative
so that right may be given another opportunity to prevail.”
Sullivan, 820 A.2d at 806 (citation omitted).
Commonwealth v. Wright, 846 A.2d 730, 736-737 (Pa. Super. 2004).
In the present case, Gibbs properly filed a post-sentence motion in
which he challenged the weight of the evidence supporting his convictions.
See Motion for New Trial, filed 4/9/2015, at unnumbered 2. However, the
trial court never specifically addressed the weight claim because the motion
was denied by operation of law. Moreover, the judge who presided over Gibbs’
jury trial is no longer sitting in the Philadelphia County Court of Common Pleas.
In such a case, the Pennsylvania Supreme Court has carved an exception to
the general rule that “a weight of the evidence claim is primarily addressed to
the discretion of the judge who actually presided at trial.” Armbruster v.
Horowitz, 813 A.2d 698, 702 (Pa. 2002). The Armbruster Court held:
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[W]here a properly preserved weight of the evidence claim is
raised on appeal and the judge who presided at trial failed to rule
on the claim and is now permanently unavailable to do so, the
claim must be reviewed by the appellate tribunal in the first
instance. We are confident in the ability of our appellate courts to
apply this exception appropriately, with an eye to the delicate
balance that exists between the jury’s exclusive role in assessing
credibility, and our longstanding recognition of the power in courts
to allow justice another opportunity to prevail when a verdict
nevertheless shocks the judicial conscience. In this regard, we
note that our appellate courts are well-familiar with weight claims.
Although appellate review has been confined to an assessment of
the trial judge’s exercise of discretion, it obviously has been
necessary to consider the proper role and contours of the weight
of the evidence doctrine, in evaluating that exercise of discretion.
Id. at 705. Therefore, we may proceed to an examination of Gibbs’ weight of
the evidence claim absent a trial court opinion.
The problem herein, however, is that Gibbs has failed to provide any
argument to support a finding that the verdicts were against the weight of the
evidence in either his post sentence motion or Anders brief.6 See Motion for
New Trial, filed 4/9/2015, at unnumbered 2 (asserting his convictions “were
against the weight of the evidence[, such evidence being] incapable of
supporting the aforesaid criminal convictions”); Anders Brief at 11-12.
Accordingly, absent a specific basis to conclude the jury’s verdict was against
the weight of the evidence, we conclude this claim is waived, and agree with
counsel’s determination that the issue on appeal is frivolous.
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6Gibbs did not address the weight claim in his pro se response to counsel’s
Anders brief.
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The third issue identified in the Anders brief challenges the trial court’s
denial of Gibbs’ motion to suppress the evidence recovered during the search
of Rasheedah Malone’s house. Gibbs contends the search was unlawful due
to a typographical error in the number of the search warrant for the house.
Gibbs further claims the search warrant for Gibbs’ cell phone was based on an
affidavit of probable cause containing inaccurate information. Specifically,
Gibbs avers the affidavit incorrectly stated that his uncle identified Gibbs’
phone number for the police. See Anders Brief at 12-13.
In his pro se response to the Anders brief, Gibbs raises additional
related claims that (1) the police arrested Gibbs in Malone’s residence without
a physical warrant and obtained Malone’s signature consenting to the police
entry after the fact, while she was in custody; (2) the police lacked probable
cause to believe that evidence of firearms violations would be found in
Malone’s residence; and (3) the search warrant was overbroad because it
sought, inter alia, “any other items deemed to be of evidentiary value.” See
Anders Brief Opposition, 5/12/2017, at 16-19.
Our standard of review of a trial court’s denial of a motion to suppress
is as follows:
When we review the ruling of a suppression court, we must
determine whether its factual findings are supported by the
record. Where the defendant challenges an adverse ruling
of the suppression court, we will consider only the evidence
for the prosecution and whatever evidence for the defense
which is uncontradicted on the record as a whole; if there is
support on the record, we are bound by the facts as found
by the suppression court, and we may reverse that court
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only if the legal conclusions drawn from these facts are
erroneous. Moreover, even if the suppression court did err
in its legal conclusions, the reviewing court may
nevertheless affirm its decision where there are other
legitimate grounds for admissibility of the challenged
evidence.
Commonwealth v. Laatsch, 661 A.2d 1365, 1367 (Pa. 1995).
A search warrant is constitutionally valid if it: (1) describes the place to
be searched and the items to be seized with specificity; and (2) is supported
by probable cause to believe that the items sought will provide evidence of a
crime. Commonwealth v. Ruey, 892 A.2d 802, 810 (Pa. 2006).
In determining whether a search warrant is supported by
probable cause, appellate review is confined to the four
corners of the affidavit. Probable cause, in turn, is a
practical, non-technical concept which requires
consideration of the totality of the circumstances. The
district judge that is requested to issue a warrant makes a
practical, common-sense determination as to whether,
given all of the facts and circumstances provided in the
affidavit, including the veracity and basis of knowledge of
the persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a certain locale. The duty of the reviewing court is
to simply ensure that the district judge had a substantial
basis for concluding that probable cause existed.
Commonwealth v. Galvin, 985 A.2d 783, 796 (Pa. 2009). “[T]he
Pennsylvania Supreme Court has instructed that search warrants should be
read in a common sense fashion and should not be invalidated by hyper-
technical interpretations. This may mean, for instance, that when an exact
description of a particular item is not possible, a generic description will
suffice.” Id. at 828 (citation omitted).
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Instantly, on November 20, 2012, a warrant was issued for Gibbs’ arrest
for violating his parole in a previous case. At the suppression hearing, the
arresting officer testified that he received a call on November 23, 2012,
informing him that Gibbs was wanted for a parole violation and could be
located at Malone’s residence. The officer confirmed the existence of the
warrant by checking the NCIC/PCIC criminal databases. See N.T., 12/2/2014,
at 7, 16, 22-23. Thus, Gibbs’ arrest was lawful, regardless of whether the
officer physically possessed the arrest warrant when he took Gibbs into
custody. See Commonwealth v. Blakney, 396 A.2d 5 (Pa. Super. 1978)
(stating fact that arrest was made by police officer who had knowledge of
arrest warrant, but did not have physical possession of it at time of arrest,
would not affect its validity). Moreover, whether Malone consented to the
officer’s entry into her house has no bearing on the validity of Gibbs’ arrest. 7
See Commonwealth v. Stanley, 401 A.2d 1166 (Pa. Super. 1979) (stating
arrest warrants represent judicial sanction of deprivations of suspects’
liberties; possession of warrants was completely self-validating justification
for arrests regardless of circumstances under which police reached the
location where they served warrants). Therefore, Gibbs’ challenge to his
arrest is frivolous.
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7 Additionally, none of the evidence Gibbs sought to suppress was recovered
during the initial entry of the police into the house to arrest him. That
evidence was recovered during a search later in the day after the police had
secured a search warrant.
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With regard to Gibbs’ objection to the search warrant, we note that the
number on the search warrant (169852) differed by one digit from the number
on the attached affidavit of probable cause (169842). At the suppression
hearing, the detective who prepared the search warrant testified that the
discrepancy was due to a typographical error, and the affidavit pertained to
Malone’s residence. See N.T., 12/2/2014, at 44-45. The search warrant and
the affidavit both have the same date and refer to the same address to be
searched. The body of the affidavit makes clear it was intended to establish
probable cause for a search of Malone’s residence following Gibbs’ arrest at
that location. Therefore, the trial court properly determined the patent
typographical error in the affidavit did not require suppression of the evidence
recovered from the house. See Commonwealth v. Leed, 142 A.3d 20 (Pa.
Super. 2016) (stating trial court was entitled to consider totality of
circumstances set forth in affidavit of probable cause; obvious typographical
error in affidavit did not invalidate search warrant).
We further reject Gibbs’ contention that the search was unsupported by
probable cause. The search warrant sought the following evidence:
Handguns, Firearms, Ammunition or other ballistic type
evidence; proof of ownership/registration of vehicles; proof
of residency/occupation; dark colored hoodie type jacket;
and any other items deemed to be of evidentiary value.
Commonwealth’s Exhibit C-72. The attached affidavit of probable cause
established the following: Zykia Sanders was shot and killed on November 17,
2012, outside 4445 Holden Street, where several people were gathered; a
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witness to the incident identified Gibbs as the shooter; Handy told police he
was in the crowd and had a problem with Gibbs, who had shot at him in the
same area approximately one month earlier; an additional witness told police
he had heard people saying Gibbs had shot Sanders, but she was not the
intended target; the witness also stated he saw Gibbs use two handguns to
shoot at one of the males in the crowd approximately three to four weeks
earlier; Gibbs was on parole for a prior murder conviction; police obtained an
arrest warrant for Gibbs and arrested him in Malone’s residence on November
23, 2012; Malone told police Gibbs had been staying with her since August
2012. Accordingly, the information in the affidavit established probable cause
to search Malone’s house for evidence related to the murder of Sanders.
Gibbs’ specific claim regarding the breadth of the search warrant is
waived. We note that Gibbs did assert, in passing, that the search warrant
for Malone’s residence was overbroad in his pro se motion to suppress filed on
October 20, 2014. However, this pro se filing was a legal nullity because Gibbs
was represented by counsel at that time. See Commonwealth v. Tedford,
960 A.2d 1, 10 n.4 (Pa. 2008) (stating criminal defendant represented by
counsel is not entitled to “hybrid representation”—i.e., he cannot litigate
certain issues pro se while counsel forwards other claims); Commonwealth
v. Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2015) (stating that defendant’s pro
se filing in trial court was legal nullity since he was represented by counsel).
Counsel did not raise the issue of the warrant’s scope either in a written motion
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or at the suppression hearing, where counsel litigated two distinct claims. See
supra, at 3 n.2. Therefore, the court had no opportunity to address this
specific argument, and it is waived on appeal. See Pa.R.A.P. 302(a) (issues
not raised in lower court are waived and cannot be raised for first time on
appeal).
With regard to Gibbs’ claims concerning the search of his cell phone, we
note that during a sidebar conference at trial, defense counsel objected to the
validity of the search warrant authorizing a forensic examination of Gibbs’
phone. See N.T., 12/4/2014, at 11-14. Counsel alleged the supporting
affidavit of probable cause inaccurately stated that Gibbs’ uncle identified
Gibbs’ phone number in a statement to the police. See id. at 13.
Nonetheless, counsel acknowledged that Gibbs’ uncle told police his cell phone
had Gibbs’ phone number stored in it under the nickname “Meen,” and the
police then obtained Gibbs’ phone number through a search of his uncle’s
phone. See id. at 11-12. This issue is arguably waived based upon Gibbs’
failure to raise it in his pretrial suppression motion. See Pa.R.Crim.P. 581(B)
(stating: “Unless the opportunity did not previously exist, or the interests of
justice otherwise require, such motion [to suppress] shall be made only after
a case has been returned to court and shall be contained in the omnibus
pretrial motion set forth in Rule 578. If timely motion is not made hereunder,
the issue of suppression of such evidence shall be deemed to be waived”).
Furthermore, the fact that Gibbs’ uncle told police the contact name for Gibbs
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in his phone, instead of reciting the digits of Gibbs’ phone number, is
inconsequential. In either case, Gibbs’ uncle provided the number to the
police. Accordingly, the record supports the trial court’s suppression rulings,
and we conclude counsel correctly determined any challenge to those rulings
is frivolous.
The final issue raised in the Anders brief involves a generic challenge
to the discretionary aspects of Gibbs’ sentence.
A challenge to the discretionary aspects of a sentence is not absolute,
but rather, “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and
internal citation omitted). To reach the merits of such a claim, this Court must
determine:
(1) whether the appeal is timely; (2) whether [the
defendant] preserved [the] issue; (3) whether [the
defendant’s] brief includes a concise statement of the
reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013). “[I]ssues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Cartrette, supra at 1042.
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Here, Gibbs failed to challenge the discretionary aspects of his sentence
at sentencing or in a timely filed post-sentence motion. See Pa.R.Crim.P. 720
(A)(1). Therefore, any claims regarding the discretionary aspects of his
sentence are waived on appeal, and counsel properly determined that this
issue is frivolous.
Although Gibbs failed to set out issues separately for this Court’s review
in his pro se response to the Anders brief, we are able to glean several
additional claims. First, Gibbs argues that Anthony Wells’ statement to the
police was the product of police suggestion. See Anders Brief Opposition,
5/12/2017, at 9. He contends both Wells and Handy subsequently retracted
their statements to police that Gibbs shot at Handy during the October 24,
2012, incident. Gibbs concludes the witnesses’ prior statements incriminating
him were inadmissible as substantive evidence. See id. at 10.
This issue is waived. There is no indication in the record that Gibbs
challenged the admissibility of either Wells’ or Handy’s statements to police.
See Pa.R.A.P. 302(a); Commonwealth v. Thoeun Tha, 64 A.3d 704 (Pa.
Super. 2013) (stating failure to raise contemporaneous objection to evidence
at trial waives claim on appeal; even if defendant did provide
contemporaneous objection, failure to cite to that objection renders claim
unreviewable). Accordingly, we need not address this issue any further.
Second, Gibbs insists the trial court improperly admitted text messages
from the cell phone of his uncle, Bruce Gibbs. See Anders Brief Opposition,
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5/12/2017, at 10-12. Gibbs contends his confrontation rights were violated
because he could not cross-examine his uncle, who was deceased at the time
of trial. He further claims the trial court initially sustained an objection to the
text messages, but subsequently abused its discretion when it decided to
admit them in evidence.
At trial, during direct examination of Detective Verrecchio, the
Commonwealth introduced a copy of the statement Gibbs’ uncle gave to the
detective. In referring to the statement, the prosecutor asked, “And Mr. Bruce
Gibbs who is now deceased at that time, did he give you his cell phone
number?” N.T., 12/3/2014, at 252. Defense counsel objected on hearsay
grounds, and the court sustained the objection. When questioning of
Detective Verrecchio resumed, the prosecutor asked, “Did you come into
possession of [Bruce Gibbs’] cell phone?” N.T., 12/4/2014, at 16. The
prosecutor then inquired about a forensic examination the detective
performed on the cell phone, which revealed the phone’s number. Id. at 16-
17. Defense counsel raised no objection to this line of questioning, which did
not elicit any text messages or other statements made by Gibbs’ uncle, and
the trial court did not alter its earlier evidentiary ruling. Because Gibbs’
argument relies on a mischaracterization of the record, we conclude it is
frivolous.
Lastly, Gibbs contends the Commonwealth fabricated text messages
associated with his own cell phone number and failed to turn over the text
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messages and other cell phone data to the defense before trial. See Anders
Brief Opposition, 5/12/2017, at 12-16. Gibbs again misconstrues the record.
During a sidebar conference, defense counsel stated the Commonwealth
appeared to have obtained the text messages through a forensic examination
of Gibbs’ cell phone, which was not authorized by the search warrant issued
to the service provider, T-Mobile. The prosecutor, however, responded that
defense counsel was looking at the wrong search warrant—a separate search
warrant had authorized the forensic examination conducted by the police.
Defense counsel then confirmed that this resolved the issue. See N.T.,
12/4/2014, at 5-10. Counsel did not allege that the texts had been
“manufactured” by the Commonwealth, and Gibbs provides no evidence for
this allegation.
Additionally, Gibbs points to no part of the record where an objection
was raised to the Commonwealth’s alleged failure to disclose certain evidence
prior to trial. Gibbs merely cites a comment made in passing by defense
counsel during the sidebar discussion about how the Commonwealth obtained
Gibbs’ text messages:
However, all this does in terms of the warrant is talk about
getting certain cell information from T-mobile. And that
information plus other cell tower information was provided
to counsel during the course of the lead up to trial.
Now, the text data was not provided to counsel. I know Ms.
Donnelly sent me an e-mail on Friday November 20th that
had attachments to it. But I believe I was having difficulty
opening that data. And she resent the data the following
Monday, which I was able to open and take a look at.
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Id. at 7. Counsel did not raise an objection based upon the lack of pretrial
disclosure and actually conceded that the Commonwealth ultimately turned
over the evidence in question prior to trial. To the extent Gibbs complains
about any other alleged violations of the rules regarding pretrial disclosure of
evidence, those claims are waived. See Pa.R.A.P. 302(a); Thoeun Tha,
supra.
Accordingly, our review of the issues addressed in counsel’s Anders
brief, as well as the claims raised in Gibb’s pro se response, reveals no non-
frivolous claims for appeal. Therefore, we affirm the 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: 3/28/18
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