Com. v. Sanders, J.

J-S74028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES SANDERS :
:
Appellant : No. 1659 EDA 2016
Appeal from the Judgment of Sentence September 11, 2013
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003054-2011
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 06, 2018
James Sanders appeals, nunc pro tunc, from his judgment of sentence,
entered in the Court of Common Pleas of Philadelphia County, after a jury
found him guilty of violations of the Uniform Firearms Act. Counsel has
petitioned this Court to withdraw from his representation of Sanders pursuant
to Anders and Santiago.1 Upon review, we affirm Sanders’ judgment of
sentence and grant counsel’s petition to withdraw.
On April 10, 2013, Sanders was convicted of three violations2 of the
Uniform Firearms Act following an incident in which he argued with another
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
2 Sanders was convicted of persons not to possess firearms, 18 Pa.C.S.A. §
6105, firearms not to be carried without a license, 18 Pa.C.S.A. § 6106, and
carrying firearms on a public street, 18 Pa.C.S.A. § 6108.
J-S74028-17
man over a woman and they shot each other. The other man, Bradley Poole,
died from his injuries. Sanders was not charged with homicide, however,
because the police could not determine which man had fired first. On
September 11, 2013, the trial court sentenced Sanders to an aggregate term
of 8½ to 17 years’ imprisonment. Sanders did not file a direct appeal but, on
October 30, 2013, he filed a pro se petition under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, alleging that his counsel was
ineffective for failing to file an appeal. The PCRA court reinstated Sanders’
appellate rights, and this timely appeal followed. On September 16, 2016,
Sanders’ counsel filed a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, in which he identified four issues. However, upon
further review, counsel determined those issues to be frivolous and now seeks
to withdraw.
In order to withdraw pursuant to Anders, counsel must: (1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support an
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief raising any additional
points that the appellant deems worthy of review. Commonwealth v.
Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), the Pennsylvania Supreme Court held
-2-
J-S74028-17
that, in order to withdraw under Anders, counsel must also state his reasons
for concluding his client’s appeal is frivolous.
Instantly, counsel’s petition states that he has made an examination of
the record and concluded the appeal is wholly frivolous. Counsel indicates
that he supplied Sanders with a copy of the brief and a letter explaining his
right to proceed pro se, or with privately-retained counsel, and to raise any
other issues he believes might have merit.3 Counsel has also submitted a
brief, setting out the issues raised by Sanders and, pursuant to the dictates
of Santiago, explains why he believes the appeal to be frivolous. Thus,
counsel has substantially complied with the requirements for withdrawal.
Counsel having satisfied the above requirements, this Court must
conduct its own review of the proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
Sanders first claims that the trial court erred in sustaining a
Commonwealth objection to a question posed by defense counsel to
Commonwealth witness Antwine Smith. Smith, a friend of decedent Poole,
had been present at the time of the shooting. On cross-examination, defense
counsel asked Smith if he was aware that people were saying that individuals
other than Sanders and the decedent had been firing guns during the incident
____________________________________________
3Sanders has not submitted any additional or supplemental filings to this
Court.
-3-
J-S74028-17
in question. The Commonwealth objected and defense counsel argued that
the question should be permitted under the “state-of-mind” exception to the
hearsay rule. The court sustained the objection, ruling that because the
witness, Smith, was neither the decedent nor the defendant and was not the
declarant of the statement, the hearsay exception was inapplicable. We
agree.
Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted in the statement. Commonwealth v. Begley, 780 A.2d 605,
623 (Pa. 2001), citing Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa.
1999). The rule against admitting hearsay evidence stems from its assumed
unreliability, because the declarant cannot be challenged regarding the
accuracy of the statement. Commonwealth v. Rush, 605 A.2d 792 (Pa.
1992). There are, however, several recognized exceptions to the hearsay
rule, including the “state-of-mind” exception under Pa.R.E. 803(3), which
provides an exception to the hearsay rule, in relevant part, as follows:
(3) Then-Existing Mental, Emotional, or Physical Condition.
A statement of the declarant’s then-existing state of mind (such
as motive, intent or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed[.]
Pa.R.E. 803(3).
Our Supreme Court has explained the rationale underlying the state-of-
mind exception to the hearsay rule as follows:
-4-
J-S74028-17
Intention, viewed as a state of mind, is a fact, and the commonest
way for such a fact to evince itself is through spoken or written
declarations. It is therefore because of the impossibility, in many
cases, of proving intention apart from personal declarations, that
they are admitted. The true basis of their admission, then, is
necessity, because of which an exception to the hearsay rule is
recognized[.]
Begley, 780 A.2d at 623, quoting Commonwealth v. Marshall, 135 A. 301,
304 (Pa. 1926). Where the declarant’s out-of-court statements demonstrate
her state of mind, are made in a natural manner, and are material and
relevant, they are admissible pursuant to the exception. Id., citing
Commonwealth v. Riggins, 386 A.2d 520, 525 (Pa. 1978). The
determination of whether such statements are admissible is within the sound
discretion of the trial court and will be reversed only upon an abuse of that
discretion. Id.Here, the plain language of Rule 803(3) renders the exception
inapplicable to the instant situation. Smith was not the declarant of the
statements. Rather, unknown “people” were the alleged declarants. Because
Smith was not the declarant, the statements cannot be said to demonstrate
Smith’s state of mind. Thus, the testimony defense counsel attempted to elicit
is inadmissible under Rule 803(3), and Sanders is entitled to no relief.
Next, Sanders claims that the trial court erred by allowing a prior
statement made by Smith to be re-read into the record by Detective Brian
Peters after Smith refuted it during his testimony. Specifically, Smith testified
at trial that he had not seen who was firing guns. Accordingly, counsel for the
-5-
J-S74028-17
Commonwealth cross-examined him with his prior inconsistent statements;
particularly, his testimony from the preliminary hearing and his signed,
verbatim statement to police, in both of which he had identified Sanders and
the decedent as the shooters. The Commonwealth also introduced Smith’s
police statement through the testimony of Detective Brian Peters, who took
the statement. Defense counsel objected on the basis that the statement had
already been introduced during Smith’s cross-examination. The trial court
allowed Detective Peters to read the statement in its entirety. Sanders is
entitled to no relief.
Otherwise relevant evidence may be excluded if its probative value is
outweighed by its potential for prejudice. “The probative value of the evidence
might be outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, pointlessness of presentation, or
unnecessary presentation of cumulative evidence.” Commonwealth v.
Page, 965 A.2d 1212, 1220 (Pa. Super. 2009), citing Pa.R.E. 403.
“Cumulative evidence” is defined as “additional evidence of the same
character as existing evidence and that supports a fact established by the
existing evidence.” Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa.
2012) (citation omitted). However, “[e]vidence is not unfairly prejudicial
simply because it is harmful to the defendant’s case. Rather, exclusion of
evidence on this ground is limited to evidence so prejudicial that it would
inflame the jury to make a decision based upon something other than the legal
-6-
J-S74028-17
propositions relevant to the case.” Commonwealth v. Foley, 38 A.3d 882,
891 (Pa. Super. 2012).
Here, we conclude that, while the re-reading of the entire statement
may have been cumulative of earlier testimony elicited from Smith, it was not
unduly prejudicial. During Smith’s direct examination, counsel for the
Commonwealth read through Smith’s entire statement to the police and
inquired as to the veracity of each answer. Smith acknowledged that most of
the statement was accurate. However, Smith denied a key portion of the
statement, in which he identified the defendant as one of the shooters.
Rather, Smith testified that he had merely heard gunfire, without actually
seeing who was doing the shooting. In light of this testimony, the purpose of
allowing Detective Peters to re-read Smith’s statement and testify as to the
circumstances surrounding the statement was not merely to repeat it to the
jury. Rather, it was necessary to combat Smith’s claims that the statement
was inaccurate, and to refute any inference of mistake or impropriety on the
part of the police in taking Smith’s statement. While it may have been
unnecessary for Detective Peters to re-read those portions of Smith’s
statement that Smith acknowledged to be correct, allowing him to do so was
not so prejudicial as to “inflame the jury to make a decision based upon
something other than the legal propositions relevant to the case.” Id.Accordingly, any error in admitting the full statement during Detective Peters’
direct examination was harmless.
-7-
J-S74028-17
Next, Sanders raises two claims related to the trial court’s denial of
requested jury instructions regarding the testimony of Officer Robin Middleton,
to whom Sanders had given his statement. Sanders alleges that the court
erred in declining to include Officer Middleton by name in the impeachment
instructions and by failing to instruct the jury that Officer Middleton’s
preliminary hearing testimony could be considered as substantive evidence.
These claims are waived.
A specific and timely objection must be made to preserve a
challenge to a particular jury instruction. Failure to do so results
in waiver. Generally, a defendant waives subsequent challenges
to the propriety of the jury charge on appeal if he responds in the
negative when the court asks whether additions or corrections to
a jury charge are necessary.
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010).
Here, defense counsel did not object immediately following the specific
instructions at issue, or at the conclusion of the jury charge. Moreover, at the
conclusion of the charge, the following exchange occurred:
[THE COURT:] Before I proceed with the manner of deliberations,
which is the final segment, do counsel need to confer with me with
any of the technicalities of the charge --
[DEFENSE COUNSEL]: No, Your Honor.
N.T. Trial, 4/9/13, at 90.
Because trial counsel failed to lodge any objection to the court’s
instructions at the conclusion of the jury charge, any claim related to the form
or content of the charge is waived. Moury, supra.
-8-
J-S74028-17
In the final claim raised in the Anders brief, counsel briefly mentions
the issue of sentencing, only to state that he believes any such claim to be
meritless. Counsel does not include a Pa.R.A.P. 2119(f) statement, or address
the issue any further. However, because Sanders filed a motion for
reconsideration of sentence, and because our obligation pursuant to Anders
is to thoroughly review the record to ensure that there are no potentially
meritorious appellate issues, we will address Sanders’ sentencing claim as
preserved in his post-sentence motion. See Commonwealth v. Zeigler, 112
A.3d 656, 661 (Pa. Super. 2015) (“Where counsel files an Anders brief, this
Court has reviewed the matter even absent a separate Pa.R.A.P. 2119(f)
statement. Hence, we do not consider counsel’s failure to submit a Rule
2119(f) statement as precluding review of whether [a]ppellant’s issue is
frivolous.”).
In his post-sentence motion, Sanders asserted that his sentence was
excessive, as it was “grossly outside the guidelines,” and that the court did
not provide adequate reason for deviation from the sentencing guidelines.
Sanders’ claim is patently meritless.
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion. [A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
-9-
J-S74028-17
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citations omitted).
Deference is accorded to the trial court’s pronouncement of sentence because
of the perception that the trial court is in the best position to determine the
proper penalty for a particular offense based upon an evaluation of the
individual circumstances before it. Commonwealth v. Ward, 568 A.2d
1242, 1243 (Pa. 1990).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant[.]” Commonwealth v. Walls, 846 A.2d
152, 157 (Pa. Super. 2004). In order to constitute an abuse of discretion, a
sentence must either exceed the statutory limits or be so manifestly excessive
as to constitute an abuse of discretion. Commonwealth v. Miller, 965 A.2d
276, 277 (Pa. Super. 2009), quoting Commonwealth v. Fish, 752 A.2d 921,
923 (Pa. Super. 2000). A sentence should not be disturbed where it is evident
that the sentencing court was aware of sentencing considerations and weighed
the considerations in a meaningful fashion. Id. Where a sentencing judge
had the benefit of a pre-sentence investigation report (“PSI”), it is presumed
that he was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors. Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). Finally, where
the sentencing court imposes a standard-range sentence with the benefit of a
- 10 -
J-S74028-17
PSI, we will not consider the sentence excessive. Commonwealth v. Corley,
31 A.3d 293, 298 (Pa. Super. 2011), citing Commonwealth v. Moury, 992
A.2d 162, 171 (Pa. Super. 2010).
Here, the court was in possession of a PSI and considered its contents
in fashioning Sanders’ sentences, two of which – contrary to Sanders’
assertion – were actually within the mitigated range of the sentencing
guidelines, with the third being within the standard range. The court
considered the protection of the public, the gravity of the offense, and
Sanders’ rehabilitative needs, as well as the mitigating factors raised by his
counsel. See N.T. Sentencing, 9/11/13, at 44-46; 42 Pa.C.S.A. § 9721(b).
In light of the foregoing, we cannot say that the sentence imposed was
excessive. Corley, supra. Accordingly, Sanders’ claim must fail.
Judgment of sentence affirmed; petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/18
- 11 -