Com. v. Hinton, J. ( 2017 )

J-S46012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES ROBERT HINTON
Appellant No. 403 MDA 2017
Appeal from the Judgment of Sentence February 6, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000308-2016
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.,*
MEMORANDUM BY BOWES, J.: FILED OCTOBER 26, 2017
James Robert Hinton appeals from the judgment of sentence of two to
four years incarceration imposed following his conviction of one count of
access device fraud. Jason G. Pudleiner, Esquire, has filed a petition to
withdraw from representation and a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We grant the petition and affirm.
The trial court set forth the facts adduced by the Commonwealth at
Appellant’s jury trial in its Pa.R.A.P. 1925(a) opinion.
On November 19, 2015 at 10:02 P.M., Trooper Christopher
Ashey of the Pennsylvania State Police was dispatched to the
Gettysburg Lutheran Home in Adams County, Pennsylvania for a
report of three separate thefts. Three vehicles parked in the
Lutheran Home parking lot had been broken into. Several items
had been stolen including three purses with credit cards inside
* Former Justice specially assigned to the Superior Court.
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them. One victim reported that her stolen ACNB card was used
online. On December 7, 2015, another victim reported that her
stolen Chase Amazon Visa Card was used at the Gettysburg
Walmart in the amount of $114.01, Gettysburg Sheetz in the
amount of $41.00, and Fayetteville Rutter's located in Franklin
County in the amount of $56.85. The victim did not authorize
any of these transactions. The Walmart and Sheetz stores where
the victim's credit card was used are located approximately one
mile from the Lutheran Home traveling straight down Shealer
Road.
On December 8, 2015, Trooper Jonathan Wolfe of the
Pennsylvania State Police contacted the Gettysburg Walmart and
received surveillance photographs of the transaction in which the
stolen Chase Amazon Visa Card was used by two men
purchasing milk and printer cartridges totaling $114.01. This
transaction occurred on November 19, 2015. A Walmart
employee identified one of the men from the surveillance
photographs as Appellant.
On December 8, 2015, the Gettysburg Sheetz Loss Prevention
Team Agent provided Trooper Wolfe with still photographs of a
transaction at Sheetz involving the same stolen Chase Amazon
Visa Card that was used at the Gettysburg Walmart. The
photograph showed a green Ford Explorer with Pennsylvania
Registration HML0357 stopped at the fuel pump. After consulting
PennDot Records, Trooper Wolfe concluded that the Ford
Explorer from the Sheetz surveillance photo was registered to
Appellant. Trooper Wolf identified the man in both the Walmart
and the Sheetz photographs as Appellant by referring to
Appellant's Pennsylvania Driver's License photograph. In both
the Walmart and Sheetz transactions, Appellant used the stolen
Chase Amazon Visa Card.
On December 11, 2015, Trooper Wolfe interviewed Appellant at
his residence, and Appellant admitted that he was the person in
both the Walmart and Sheetz surveillance photos and that he
used a credit card for both transactions. Appellant also stated
that his nephew, Gary Hinton, gave him a credit card to use and
said that it belonged to his girlfriend.
Trial Court Opinion, 3/21/17, at 1-3.
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Appellant was convicted by the jury of one count of access device
fraud, and received the aforementioned sentence. Appellant timely appealed
from the denial of his post-sentence motion for reconsideration, and
complied with the order to supply a Pa.R.A.P. 1925(b) statement. The
matter is now ready for our review. In his Anders brief, Attorney Pudleiner
raised the following issues before concluding that this appeal was wholly
frivolous.
I. Whether the lower court abused its discretion in admitting
evidence of Appellant's prior record that exceeded 10
years.
II. Whether the lower court abused its discretion in not
granting a new trial after the Commonwealth tainted the
jury pool by repeatedly claiming Appellant testified to
something that he did not.
Appellant’s brief at 6.
Since counsel has filed a petition to withdraw, we must first rule on the
request to withdraw without reviewing the merits of the underlying issues.
Commonwealth v. Blauser, 166 A.3d 428 (Pa.Super. 2017). In order to
withdraw from appellate representation pursuant to Anders, certain
procedural and substantive requirements must be met. Procedurally,
counsel must 1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has determined
that the appeal would be frivolous; 2) furnish a copy of the brief to the
defendant; and 3) advise the defendant that he or she has the right to retain
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private counsel or raise additional arguments that the defendant deems
worthy of the court's attention. See Commonwealth v. Cartrette, 83 A.3d
1030 (Pa.Super. 2013) (en banc).
Attorney Pudleiner’s petition to withdraw sets forth that he reviewed
the entire record, and concluded that there are no actual or potential non-
frivolous issues. The brief appends a copy of the letter sent to Appellant,
which informed Appellant that he had the right to retain new counsel or
proceed pro se and raise additional arguments on his own behalf. Appellant
was also furnished with a copy of the Anders brief. Therefore, counsel
complied with the procedural requirements.
Next, we examine whether counsel’s Anders brief meets the
substantive requirements as set forth 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.
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010) (citing
Santiago, supra at 361).
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The brief summarized the factual and procedural history of this case,
and referred to the portions of the record that fail to support these issues
with citations and discussion of pertinent case law. Thus, this brief is
compliant with Santiago.
We now consider the issues raised in the Anders brief. The first issue
challenges the trial court’s decision to admit certain crimes as impeachment
evidence pursuant to Pa.R.E. 609, which states in relevant part:
(a) In General. For the purpose of attacking the credibility of
any witness, evidence that the witness has been convicted of a
crime, whether by verdict or by plea of guilty or nolo contendere,
must be admitted if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed since
the witness's conviction or release from confinement for it,
whichever is later. Evidence of the conviction is admissible only
if:
(1) its probative value substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party
has a fair opportunity to contest its use.
Pa.R.E. 609.
During a break in the proceedings, Appellant confirmed that he
intended to testify and the parties discussed the admissibility of Appellant’s
crimen falsi convictions in rebuttal. The Commonwealth proposed to
introduce Appellant’s convictions for: burglary from 1976, two burglaries
from 1978, burglary from 1979, theft by receiving stolen property from
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1980, burglary from 1987, theft by unlawful taking from 2000, burglary from
2004, and criminal conspiracy to commit robbery in 2004.1 The
Commonwealth noted that, with respect to the 2004 case, “the release from
jail would be within the 10 years.” N.T., 2/6/17, at 74. The trial court asked
if Appellant had anything to add. Id. In response, Appellant did not lodge
any type of objection to this proposal; instead, he simply stated, “[I am]
obviously not stipulating to the admission, but in terms of the jail sentence,
unless we have some sort of proof of when he got out of jail, that was never
discussed before. I don’t have the specific date unless they have some sort
of specific date.” Id. at 75. The parties limited their subsequent discussion
to when Appellant was released from incarceration on the 2004 case. The
trial court then made the following ruling:
Taking it all into consideration, the factors to be weighed, I’m
looking at whether the probative value outweighs the prejudicial
effect or vice versa. The factors to be considered are the age of
the offenses, the age of the Defendant, the nature of the
offenses committed. Obviously, anything within that 10-year
release from custody would be permissible as crimen falsi.
I think in fairness here the burglaries from back in the ‘70s are
probably too antiquated and would only serve to prejudice the
jury. What will be admissible by way of crimen falsi as a result
of the balancing of the interest here is the crimes committed in
the 2000s, the theft in 2000, burglary in ’04, and conspiracy to
commit robbery in ’04.
____________________________________________
1 As to this latter crime, Appellant was actually convicted of conspiracy to
commit burglary. However, Appellant did not object to the incorrect
recitation to the jury.
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[APPELLANT]: Understood, Your Honor.
Id. at 75-76. Thus, while Appellant did not stipulate to the convictions, he
made no contemporaneous objection to the ruling and any objection to the
admission of this evidence has been waived. Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
The Anders brief analysis argued that the trial court applied the
incorrect standard, as the court asked “whether the probative value
outweighs the prejudicial effect or vice versa.” Id. As noted by counsel,
that test applies only if the conviction is outside of the ten-year window as
defined by Rule 609. However, the brief outlines that Appellant was
released from parole in 2009 for his 2004 convictions. Therefore, pursuant
to Rule 609(b), the convictions for those crimes were not outside of the ten-
year window and were admissible without any balancing whatsoever. We do
not disagree with this analysis, but the pertinent point with respect to
frivolity, in our view, is that the issues were not preserved for review. The
same holds true for the 2000 conviction.
Waiver also applies to the second claim discussed in the Anders brief,
i.e., that the prosecutor made improper comments during closing argument.
Specifically, the prosecutor incorrectly argued that Appellant testified that he
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did not own a credit card, while Appellant in truth stated that he used an
Access card for food and had a card that was similar to a debit card.
The Anders brief analyzes the claim under the prevailing law, and
determines that there was no prejudice. However, Appellant failed to object
to the allegedly improper statements, resulting in waiver. See
Commonwealth v. Stafford, 749 A.2d 489, 496, n.5 (Pa.Super. 2000)
(holding that any challenge to allegedly improper comments during closing
arguments was waived due to failure to object). The trial court could not
sua sponte grant a mistrial, and therefore we agree that this issue was
frivolous.
Finally, pursuant to Commonwealth v. Flowers, 113 A.3d 1246
(Pa.Super. 2015), we have independently examined the record to determine
if there are any additional, non-frivolous issues. Finding no preserved non-
frivolous issues, we grant counsel’s petition to withdraw and affirm.
The petition to withdraw of Jason G. Pudleiner, Esquire, is granted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2017
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