Com. v. Martin, K. ( 2018 )

J-S73033-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KIRBY JOHN MARTIN, :
:
Appellant : No. 787 MDA 2017
Appeal from the Judgment of Sentence April 18, 2016
in the Court of Common Pleas of Adams County,
Criminal Division, at No(s): CP-01-CR-0000837-2015
CP-01-CR-0000884-2015
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 04, 2018
Kirby John Martin (Appellant) appeals from his April 18, 2016 aggregate
judgment of sentence of five to ten years of imprisonment entered after a jury
found him guilty of four counts of person not to possess a firearm. Counsel
has filed a petition to withdraw and a brief pursuant to Anders v. California,
386 U.S. 738 (1967). We affirm Appellant’s judgment of sentence and grant
counsel’s petition to withdraw.
On May 17, 2015, Appellant rented room 114 at the Three Crowns Motor
Lodge in Gettysburg. Appellant and Paige Morris stole an axe and five firearms
(45 Long Colt pistol revolver, Just Right carbine nine millimeter assault rifle,
Circuit Judge 45 Long Colt rifle, double barrel shotgun, and a starter pistol)
from the apartment of Kanyon Crutcher, and transported them back to room
*Retired Senior Judge assigned to the Superior Court.
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114. Appellant photographed the firearms on the bed in room 114, and used
the photographs in text conversations with different people while attempting
to sell the firearms. After handling each firearm, Appellant wiped it clean with
a bandana and hid it under the mattress.
On the evening of May 19, and into the early morning hours of May 20,
Nathan Gilbert and Autumn Doyle drank alcohol and consumed cold medicine
with Appellant and Morris in room 114. At approximately 12:30 a.m.,
Appellant gave his wallet to Morris for safekeeping, and he and Gilbert left the
motel room. Appellant placed the 45 Long Colt pistol under the driver’s seat
of Doyle’s Geo Prizm, and drove away from the motel with Gilbert.
At 3:45 a.m. several officers were dispatched to neighboring
Cumberland Township for suspicious individuals who were walking around
residences with flashlights. Upon hearing that police were on their way,
Appellant and Gilbert fled from the immediate area in the Geo Prizm.
Appellant stopped on Maple Avenue and parked the vehicle with the right hand
tires on the grass. Appellant and Gilbert exited the vehicle and ran in opposite
directions, agreeing to meet later at a nearby laundromat.
Dispatch notified responding police that the suspicious individuals had
fled the area in a vehicle. Upon arriving in the area, Sergeant Larry Weikert
observed a Geo Prizm parked on Maple Avenue; it was empty but still hot to
the touch. Officer Eric Yost looked through the window of the vehicle and
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observed a loaded 45 Long Colt pistol revolver on the floorboard of the driver’s
seat, next to the gas pedal.
The officers canvassed the surrounding area in an attempt to locate the
occupants of the vehicle, including the area outside a laundromat
approximately 500 yards away. On the initial pass, Sergeant Weikert did not
observe anyone in the area. On a second pass outside the laundromat, at
approximately 4:20 a.m., Sergeant Weikert observed Appellant lying on a
bench. Appellant was sweating profusely and breathing heavily. Sergeant
Weikert approached Appellant and learned that Appellant was staying at the
Three Crowns Motor Lodge, and was “waiting on a ride from [Autumn Doyle,]”
who was also staying in room 114. N.T., 1/27/2016, at 30, 40.
Officers conducted a weapons patdown of Appellant, and located a cell
phone and a key for room 114 at the Three Crowns Motor Lodge. Sergeant
Weikert proceeded to the motel room. Doyle and Morris, still intoxicated,
answered the door. The room was secured, and a search warrant was
executed on the room at 2:30 p.m. Two firearms (the Just Right carbine nine
millimeter assault rifle and the Circuit Judge 45 Long Colt rifle) were located
under the mattress of one of the beds in the motel room, along with shotgun
shells, an axe, and a receipt for one of the firearms from Gander Mountain, in
the name of Kanyon Crutcher. Appellant’s driver’s license was found in a
wallet inside Morris’s purse, which was lying on a bed in the room.
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A search warrant was also obtained for the cell phones of Appellant and
Gilbert. A search of Appellant’s phone revealed: (1) selfies of Appellant in
room 114 at Three Crowns Motor Lodge; (2) photographs of the Just Carbine
and 45 Long Colt revolver on the bedspread in Room 114, dated 5/19/2015;
(3) photograph of the Circuit Judge on the bedspread in Room 114, dated
5/19/2015; (4) photograph of Appellant and Morris; (5) text message
conversations about selling the firearms; and (6) several calls between
Appellant and Gilbert, and Appellant and Morris, between 3:54 a.m. and 4:22
a.m. on May 20, 2015. A search of Gilbert’s cell phone revealed a photograph
of Appellant with the Just Right carbine and a photograph of the shotgun on
the bedspread in Room 114. Gilbert was apprehended at 8:00 a.m. that
morning.
The recovered firearms were test-fired and found to be in good
operating condition. The shotgun was not recovered, but Crutcher testified
that he purchased it new, and that it was in good operating condition prior to
it being stolen.
On January 27, 2016, a jury convicted Appellant of four counts of
person not to possess a firearm.1 On April 18, 2016, the trial court sentenced
Appellant to an aggregate of five to ten years of incarceration.
1At trial, Appellant stipulated that due to two previous burglary convictions,
he was not permitted to possess a firearm.
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Appellant timely filed a notice of appeal. However, this Court dismissed
the appeal on July 15, 2016, because Appellant’s counsel failed to file a
docketing statement pursuant to Pa.R.A.P. 3517. On April 20, 2017, the trial
court granted Appellant’s PCRA petition to reinstate his appellate rights nunc
pro tunc. Appellant timely filed the instant appeal.2
In this Court, counsel has filed both an Anders brief and a petition to
withdraw as counsel. Accordingly, the following principles guide our review.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
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 either to 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.
2 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Further, our Supreme Court has specified the following
requirements for an Anders brief:
[I]n 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.3 Thus, we now have the responsibility
“‘to make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.’”
Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)
(quoting Santiago, 978 A.2d at 354 n.5).
In his Anders brief, counsel raises nine issues of arguable merit for this
Court’s review. Anders Brief at 4-5. We have reordered Appellant’s issues
for ease of disposition, and will address each in turn.
3 Appellant has not filed a response to counsel’s petition to withdraw.
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The first set of issues pertains to Paige Morris, a co-defendant who
testified on behalf of the Commonwealth as part of a plea negotiation.
Specifically, counsel raises the following issues: (1) whether the trial court
abused its discretion in admitting a photograph of Appellant and Morris; (2)
whether the trial court abused its discretion when it refused to allow Appellant
to question Morris about whether she had been taking medications for
legitimate reasons; and (3) whether the trial court abused its discretion in
failing to declare a mistrial sua sponte after technical difficulties prevented
Appellant from impeaching Morris. Anders Brief at 10-13, 19-20, 24-26.
During the testimony of Morris, the Commonwealth sought to introduce
a photograph from Appellant’s cell phone of Appellant and Morris together to
establish that the phone was Appellant’s and that Appellant knew Morris.
Appellant’s counsel objected to its relevancy, and the trial court overruled
counsel’s objection. N.T., 1/27/2016, at 88-90.
“The admission of photographs is a matter vested within the sound
discretion of the trial court whose ruling thereon will not be overturned absent
an abuse of that discretion.” Commonwealth v. Solano, 906 A.2d 1180,
1191–92 (Pa. 2006) (citations omitted). The trial court offered the following
explanation for overruling Appellant’s objection and admitting the contested
photograph.
(1) [T]he picture had a tendency to make it more probable that
the phone belonged to Appellant; (2) determining whether the
phone was Appellant’s was important because there were pictures
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of guns in the hotel room saved on the phone, Appellant was a
[p]erson [n]ot to [p]ossess a [f]irearm, and Appellant possessed
firearms in the hotel room; (3) it corroborated Paige Morris’s
testimony; and (4) it showed Appellant and codefendant Morris
did in fact know each other and were present together in the hotel
room. The picture was therefore relevant and its probative value
was not outweighed by a danger of unfair prejudice. [] [I]t was
merely a picture of Appellant and adverse witness Paige Morris.
Defense counsel[,] although he objected to Commonwealth’s
Exhibit 28 on the record, provided little to no reason why the
picture was not relevant and no explanation of how the picture
would prejudice Appellant’s defense.
Trial Court Opinion, 6/21/2017, at 3-4 (citations omitted). We agree with the
trial court’s conclusion that the photograph was relevant to establish that
Appellant was in the motel room with Morris, and that the cell phone was in
fact Appellant’s cell phone. The trial court did not abuse its discretion in
admitting it, and thus any claim to the contrary is meritless.
As to the claim regarding Morris’s medications, “[e]vidence is relevant
if: (a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining
the action.” Pa.R.E. 401. On cross-examination, Appellant’s counsel sought
to impeach Morris with questions about why she was taking cough and cold
medicine. The Commonwealth objected because the underlying reason for
her intoxication was irrelevant. The trial court sustained the Commonwealth’s
objection, limiting the questions Appellant’s counsel could ask of Morris
regarding her intoxication. As succinctly explained by the trial court, “[t]he
fact that Morris was impaired is relevant, but why she became impaired does
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not matter and is not relevant.” Trial Court Opinion, 6/21/2017, at 9. We
agree because Appellant was attempting to introduce irrelevant evidence. The
trial court properly sustained the Commonwealth’s objection.
As to the mistrial claim, “[i]t is within a trial judge’s discretion to declare
a mistrial sua sponte upon the showing of manifest necessity, and absent an
abuse of that discretion, we will not disturb his or her decision.”
Commonwealth v. Kelly, 797 A.2d 925, 936 (Pa. Super. 2002).
“[A] mistrial should be declared sua sponte only in very extraordinary and
striking circumstances.” Id. at 939 (citations and quotation marks omitted).
In his Anders brief, counsel alleges that trial counsel attempted to
impeach Morris on cross-examination with her prior taped statement to police,
but that counsel was unable to do so due to a computer malfunction.
However, this claim is not supported by the record. Appellant’s counsel
acknowledges that trial counsel did not raise an objection at trial to the alleged
malfunction, and does not cite to a page in the transcript where the alleged
malfunction occurred. Anders Brief at 19. We assume, although the record
is unclear, that Appellant’s counsel attempted to play the taped statement
after Morris admitted that she lied to police in the first part of her taped
statement. N.T., 1/27/2016, at 161-162. However, the record does not
indicate whether the media equipment actually malfunctioned and prevented
Appellant from using the prior taped statement, or whether counsel simply did
not take the time to set it up.
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[Appellant’s counsel]: Your Honor, if I could just have a few
minutes. I need to find a particular section on here.
THE COURT: Go ahead.
[Appellant’s counsel]: Then I have to hook up the computer.
THE COURT: Go ahead.
[Appellant’s counsel]: This may take a little bit to warm up.
N.T. 1/27/2016, at 162. After this brief exchange, Appellant’s counsel
continued to cross-examine Morris without further reference to playing the
taped statement. At no time did Appellant’s counsel explicitly reference an
equipment malfunction. Regardless of the reason it was not played, the failure
to play the taped statement did not amount to manifest necessity. Morris
admitted on the stand that she had lied during her statement to the police,
and was successfully impeached in that regard. Thus, the trial court did not
err in not declaring a mistrial.
The next set of issues pertains to Nathan Gilbert, a co-defendant who
testified for the Commonwealth as part of a plea negotiation. Specifically,
counsel raises two claims that the trial court abused its discretion in
prohibiting trial counsel from asking Gilbert questions on cross-examination
about (1) the details of his prior burglary conviction, and (2) whether he was
subjected to cross-examination at the time he provided a statement to police
implicating Appellant. Anders Brief at 13-18.
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On cross-examination of Gilbert, Appellant’s counsel attempted to
introduce testimony regarding the underlying facts of Gilbert’s prior burglary
conviction as crimen falsi. The Commonwealth objected twice, and the trial
court sustained both objections. N.T., 1/27/2016, at 111-115.
[W]hen deciding whether a particular offense is crimen falsi, one
must address both the elemental aspects of that offense and the
conduct of the defendant which forms the basis of the anticipated
impeachment. Accordingly, this Court employs a two-step
procedure to determine whether a crime is crimen falsi. First, we
examine the essential elements of the offense to determine if the
crime is inherently crimen falsi—whether dishonesty or false
statement [is] a necessary prerequisite to commission of the
crime. Second, if the crime is not inherently crimen falsi, this
Court then inspects the underlying facts that led to the conviction
to determine if dishonesty or false statement facilitated the
commission of the crime.
Commonwealth v. Davis, 17 A.3d 390, 395–96 (Pa. Super. 2011) (citations
and quotation marks omitted) (emphasis in original).
Because the trial court found the burglary conviction to be crimen falsi
based solely on the statutory definition of the offense, the trial court was not
required to conduct an analysis of the underlying facts. Commonwealth v.
Cascardo, 981 A.2d 245, 255 (Pa. Super. 2009) (holding that the trial court
need not “engage in an analysis of the facts underlying Cascardo's federal
conviction for tampering with witnesses because the offense, by definition,
involves dishonesty”). Moreover, while a court may sometimes be required
to analyze the underlying facts of a conviction to determine whether it is
crimen falsi, see Davis, supra, we are unaware of any authority that would
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grant Appellant the right to question a witness regarding the underlying facts
of a crimen falsi conviction. The fact that the witness was convicted of a crime
of falsehood is what is relevant, and here, that evidence was presented at
trial. The underlying facts of the conviction are not relevant. Thus, counsel’s
proposed issue in this regard is without merit.
Secondly, on cross-examination, Appellant’s counsel asked Gilbert if he
was subject to cross-examination when he initially provided a statement to
police.4 The Commonwealth objected based on relevance. Appellant’s counsel
responded that it was relevant “if [Gilbert’s] going to suggest that his
statement is somehow true just because he gave it but he wasn’t subject to
the truth determining process of cross.” N.T., 1/27/2016, at 121-22. The
trial court sustained the Commonwealth’s objection, stating that “[Gilbert’s]
being cross[-]examined now.” Id. at 122.
“Admission of evidence is a matter within the sound discretion of the
trial court, and will not be reversed absent a showing that the trial court clearly
abused its discretion.” Commonwealth v. Cain, 29 A.3d 3, 6 (Pa. Super.
2011) (quoting Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009)).
More than just a mere error in judgment, an abuse of discretion occurs when
4
We note that counsel’s question was misleading to the jury. Cross-
examination is a tool used in adversarial settings to protect a defendant’s right
to confront the witnesses against him; it is not a procedure that is ever
available or applicable when an individual is interviewed by the police. See
Commonwealth v. Yohe, 39 A.3d 381, 384-85 (Pa. Super. 2012).
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the judge overrides or misapplies the law, exercises manifestly unreasonable
judgment, or demonstrates partiality, prejudice, bias, or ill-will. Id.
In its 1925(a) opinion, the trial court explained that “Gilbert was subject
to cross examination at trial, so it is completely irrelevant whether he was
cross examined when he originally made the prior statement. Gilbert was
subject to the truth determining process, and it was the exclusive province of
the jury to determine his credibility.” Trial Court Opinion, 6/21/2017, at 6.
We agree that the question was irrelevant and misleading as Gilbert could not
have been subjected to cross-examination at the time of his police interview.
The trial court did not abuse its discretion in sustaining the Commonwealth’s
objection. Counsel’s issue in this regard is meritless.
The next set of issues for review concerns the admission of text
messages. Specifically, these issues are whether the trial court abused its
discretion by (1) improperly permitting Detective Stephen Higgs to testify
about the operation of text messages when he was not qualified as an expert,
and (2) admitting the text message exhibits without an expert witness first
laying a proper foundation. Anders Brief at 20-24.
If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and
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(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701. Whereas,
[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
The specific testimony at issue concerned a screenshot of text
messages, and an explanation of which messages were incoming and which
messages were outgoing. The trial court concluded that Detective Higgs did
not provide expert testimony. Trial Court Opinion, 6/21/2017, at 8. We
agree. Detective Higgs did not testify to any technical or scientific aspects of
the phone, but rather what he plainly observed in the screenshot. Further,
his testimony was helpful in determining whether the phone belonged to
Appellant, and it did not require any specialized knowledge. Thus, the trial
court did not err in permitting Detective Higgs to testify as he did.
As to the admission of the challenged text messages, Commonwealth
Exhibits 34-40, we find that any pursuit of this claim would be frivolous. At
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trial, Appellant’s counsel objected to Detective Higgs reading the messages
aloud; counsel did not object to the admission of the exhibits themselves, or
to their publication. N.T., 1/27/2016, at 188-94. Consequently, Appellant
has failed to preserve this issue for appellate review. See Commonwealth
v. Montalvo, 641 A.2d 1176, 1184 (Pa. Super. 1994) (“In order
to preserve an issue for review, a party must make a timely and
specific objection at trial.”); Commonwealth v. Kalichak, 943 A.2d 285,
291 (Pa. Super. 2008) (holding that when an issue has been waived, “pursuing
th[e] matter on direct appeal is frivolous”).
The final set of issues identified by counsel pertains to the (1) sufficiency
of the evidence and (2) the weight of the evidence. Anders Brief at 26-29.
As to sufficiency:
[O]ur standard of review of sufficiency claims requires that
we evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be resolved
by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from
the combined circumstances.
… Significantly, we may not substitute our judgment for that of
the fact finder; thus, so long as the evidence adduced, accepted
in the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant’s crimes beyond a
reasonable doubt, the appellant’s convictions will be upheld.
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Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa. Super. 2016) (internal
citations omitted). Credibility of witnesses and the weight of the evidence
produced is within the province of the trier of fact, who is free to believe all,
part or none of the evidence. Commonwealth v. Scott, 146 A.3d 775, 777
(Pa. Super. 2016).
Appellant was convicted of four violations of section 6105, which
provides that “[a] person who has been convicted of an offense enumerated
in subsection (b) [] shall not possess [] a firearm in this Commonwealth.” 18
Pa.C.S. § 6105(a)(1). At Appellant’s trial, the parties stipulated that Appellant
was previously convicted of an enumerated offense (burglary) which rendered
him a person not to possess a firearm. N.T. 1/27/2016, at 204. Thus, the
only question as to sufficiency is whether the Commonwealth proved beyond
a reasonable doubt that Appellant possessed each of the four firearms. The
trial court aptly addressed Appellant’s sufficiency claim as follows.
At the trial on January 27, 2016, the [] Commonwealth’s
evidence included a video of Appellant at the laundromat,
photographs of Appellant’s motel room where the guns were
found, the motel room registration form showing the room
registered to Appellant, photographs of the firearms, selfie
photographs of Appellant in the [m]otel room holding one of the
firearms, photographs from Appellant’s cell phone, screenshots of
text messages from Appellant’s phone discussing the guns, phone
records of Appellant’s phone, and testimony from numerous
witnesses.
All of the testimony and evidence presented at trial
establish[ed] that Appellant knew and communicated with Nathan
Gilbert, Paige Morris, and Autumn Doyle at some point prior to
Appellant’s encounter with Sergeant Weikert. Appellant and co-
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defendant Nathan Gilbert took Autumn Doyle’s Geo Prizm on May
20, 2015. Appellant took a firearm with him in the vehicle, placing
it underneath the driver’s seat. Gilbert and Appellant agreed to
meet at the laundromat, which was the same laundromat where
the empty vehicle with the firearm inside of it was parked. Room
114 at the Three Crowns Motor Lodge was registered to Appellant
from May 17, 205 to May 20, 2015. Appellant had access to and
was inside of room 114 at the Three Crowns Motor Lodge.
Appellant stole four firearms from Kanyon Crutcher’s apartment
and sold one of them. Multiple witnesses testified that Appellant
showed them firearms in room 114[,] some of which he kept
under the bed. Appellant held a firearm for a picture and took a
picture of the other firearms in room 114. Appellant was with
Paige Morris in room 114 and touched, held, possessed, wiped
fingerprints off of, and attempted to sell the firearms. Appellant
left his wallet with Morris, and she put it in her purse in room 114.
Police located two firearms, an axe, the receipt for one of the
stolen firearms, and ammunition in room 114 of the Three Crowns
Motor Lodge. A third firearm was found in the Geo Prizm near the
accelerator pedal. Police also uncovered multiple text messages
and photographs from Appellant’s phone and photographs from
Nathan Gilbert’s phone proving Appellant’s possession of firearms.
Trial Court Opinion, 6/21/2017, at 12-13. Based on the foregoing, the
evidence presented at trial was sufficient to support his convictions.
As to Appellant’s weight-of-the-evidence claim, it is well-settled that “a
weight of the evidence claim must be preserved either in a post-sentence
motion, by a written motion before sentencing, or orally prior to sentencing.”
Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citing
Pa.R.Crim.P. 607). “Failure to properly preserve the claim will result in waiver,
even if the trial court addresses the issue in its opinion.” Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009). Instantly, Appellant did not
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present a weight-of-the-evidence claim to the trial court. Therefore, Appellant
has waived this issue and it is frivolous. See Kalichak, supra.
Thus, we agree with counsel that Appellant’s issues are frivolous.
Moreover, we have conducted “a full examination of the proceedings”
and conclude that “the appeal is in fact wholly frivolous.” Flowers, 113 A.3d
at 1248. Accordingly, 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: 1/4/2018
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