Com. v. Carr, M.

J-S42007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL CARR :
:
Appellant : No. 4086 EDA 2017
Appeal from the Judgment of Sentence November 30, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004588-2017
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY OTT, J.: FILED OCTOBER 30, 2019
Michael Carr appeals from the judgment of sentence imposed on
November 30, 2017, in the Court of Common Pleas of Philadelphia County
following his bench trial on the charges of robbery, conspiracy to commit
robbery, simple assault, and reckless endangerment. Carr received an
aggregate sentence of three to six years’ incarceration. In this timely appeal,
Carr challenges the sufficiency of the evidence regarding the robbery charge.
Carr’s counsel has filed an Anders1 brief, asserting there are no non-frivolous
issues, as well as a motion to withdraw as counsel. Carr has not responded
to the Anders brief. After a thorough review of the submissions by the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
J-S42007-19
parties, relevant law, and the certified record, we grant counsel’s motion to
withdraw and affirm the judgment of sentence.
As noted, Carr’s counsel has filed both an Anders brief and a motion to
withdraw as counsel. In reviewing this, we are guided by the following
principles.
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.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super.
2007) (citations omitted). Our Supreme Court has clarified
portions of the Anders procedure:
[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
-2-
J-S42007-19
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] at 361 [(Pa.
2009)].
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017). Counsel
has complied with the technical requirements of Anders/Santiago.
Accordingly, we will undertake our required independent review of the record
to make certain there are no non-frivolous issues.
The trial court provided the factual background of this matter in its
Pa.R.A.P. 1925(a) opinion.
On April 13, 2017, the complaining witness[,] Paul Livingston, an
elderly man who is extremely hard of hearing, was on a smoke
break with several other residents, including [Carr], outside the
halfway house where they resided. While outside, another
resident asked Livingston “for change” for a $20 bill, which
Livingston agreed and took out his wallet. Livingston testified that
he is one of the older residents of the halfway house who looks
out for the younger residents. While pulling out money to make
change, Livingston accidentally dropped $865 in U.S[.] currency
onto the stairs. While Livingston was picking up his money, he
noticed [Carr] sitting on the stairs smoking his cigarette, just a
few feet from Livingston.
After the smoke break, Livingston finished his dinner and returned
to his room upstairs, where he was followed by [Carr] and Mr.
Shawn Hammond. Mr. Livingston testified at trial that he was
unaware that [Carr] and Mr. Hammond were behind him, due to
the fact that Mr. Livingston is extremely hard of hearing. Shortly
after entering the room, Livingston was struck twice from behind,
choked, and placed in a headlock with such force that he was
pulled off the ground and lost consciousness for “15-20 seconds”.
After regaining consciousness, Livingston saw a hooded person
come towards him and begin reaching into Mr. Livingston’s pocket,
-3-
J-S42007-19
taking a few dollar bills. Mr. Livingston reached towards the
individual and managed to pull off the hood, revealing [Carr], who
Mr. Livingston recognized as his neighbor from across the hall for
the past six months. After being unmasked, [Carr] stopped what
he was doing and immediately left the room, with Mr. Hammond
following behind him. Mr. Livingston testified that [Carr] took
“three or four dollars” and that his previous injuries in his back
and neck area had been severely aggravated from the attack. The
prosecutor then introduced a surveillance video that showed
Livingston walking up to his bedroom and [Carr] and Mr.
Hammond following behind.
Trial Court Opinion, 3/22/2019, at 2-3.
Against this background, Carr asserts there was insufficient evidence to
sustain his conviction for robbery, because the Commonwealth failed to prove
he “inflicted bodily injury on another or threatened another with or
intentionally put him in fear of immediate bodily injury.” Carr’s Pa.R.A.P.
1925(b) Statement at 1-2.
The evidence presented at trial, and related by the trial court in its
opinion, demonstrates Carr conspired with Hammond to commit a robbery
against Livingston. During the course of that crime, Hammond struck
Livingston twice from behind, choked him until he passed out, and
exacerbated Livingston’s pre-existing neck and back injuries, including
herniated discs. Hammond inflicted bodily injury upon Livingston. Even
accepting that Carr never touched Livingston beyond reaching into his pocket
to try to take the cash, Carr is equally culpable for the infliction of bodily injury
due to his conspiracy with Hammond. The trial court, sitting as fact finder,
accepted Livingston’s testimony regarding his injuries. Therefore, there was
sufficient evidence to support the robbery conviction.
-4-
J-S42007-19
Carr’s brief claims insufficient evidence as to all charges. However,
insufficiency was raised in his Pa.R.A.P. 1925(b) statement only as to robbery,
as discussed above. Accordingly, insufficiency of the evidence has been
waived as to everything except robbery. Nonetheless, because this is an
Anders review, we have independently examined the record as a whole,
including a review of the sufficiency of the evidence for all charges. This
independent review confirms the sufficiency of evidence to support all
charges. Additionally, our independent review of the record confirmed
counsel’s assertion there are no other non-frivolous claims.
Judgment of sentence affirmed. Motion to withdraw as counsel granted.
Judge Colins joins in this memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/19
-5-