Com. v. Whitfield, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSEPH HAYWOOD WHITFIELD :
:
Appellant : No. 930 MDA 2020
Appeal from the Judgment of Sentence Entered October 12, 2018,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0004437-2017.
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 09, 2021
Joseph Haywood Whitfield appeals from the judgment of sentence
imposed after a jury convicted him of multiple offenses. Additionally,
Whitfield’s counsel filed a petition to withdraw from representation and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). Upon review, we grant counsel’s petition, and affirm the judgment of
sentence.
This case arises from the following facts. On August 11, 2017,
Whitfield’s eight year old son woke up to gunshots and called 911. When
Whitfield’s son went downstairs, he saw his father with a gun. Whitfield told
him there were intruders in the house. The police came and surrounded
Whitfield’s house. Dispatch was in contact with Whitfield trying to convince
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* Former Justice specially assigned to the Superior Court.
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him to put the gun down, but lost contact multiple times. After some time,
Whitfield and his son came out of the house. The police detained Whitfield and
conducted a safety sweep. The police found one spent shell casing at the
threshold of the front door and a bullet hole in the wall between the kitchen
and living room. The police did not find any firearm in plain view.
The officers then questioned him. Whitfield told them that his son was
sleeping upstairs, and he fell asleep on the couch watching TV. Whitfield woke
up and saw two intruders in the kitchen. He did not know who they were, so
he got up and fired two shots at them. He then threw the gun at them.
Whitfield told the police that the gun was a Raven Arms .25 caliber, which he
claimed to have found next to a dumpster. Because they did not find the gun
and Whitfield’s story was inconsistent, the police asked Whitfield to consent
to a search, but he refused. The police obtained a search warrant the next
morning.
During the search of Whitfield’s house, an officer found a .25 caliber
Raven Arms handgun in the second-floor front bedroom under a pile of
blankets. The serial number was obliterated. When the police told Whitfield
that they found the gun, Whitfield then told them that he hid it in his bedroom
under a basketball blanket. They also found a .32 caliber Smith & Wesson
revolver on a kitchen shelf and a .22 Colt long rifle handgun in the living room
closet. Whitfield was arrested and charged with multiple offenses.
At trial, Whitfield told a different story. There, he claimed that his cousin
and his girlfriend, who were living with him, got into a fight that night. It
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woke Whitfield up, and he claimed that his cousin was brandishing the gun at
his girlfriend and another man who was with her. Whitfield grabbed his son
and told him to call 911. The cousin then, according to Whitfield, fired two
shots. The girlfriend and other man took off. Whitfield’s cousin then threw
the gun on the couch and fled. Whitfield claimed that he then picked up the
gun and hid it upstairs for safety reasons. Finally, Whitfield claimed that he
never made those statements to the police.
The jury found Whitfield guilty of possession of firearm with
manufacturer number altered, person not to possess firearms, endangering
the welfare of a child (EWOC), and recklessly endangering another person
(REAP).1 The trial court sentenced Whitfield to an aggregate term of two and
a half (2½) to five (5) years of incarceration, followed by five (5) years of
probation. No post-sentence motion or appeal was filed.
Following a pro se Post-Conviction Relief Act2 (“PCRA”) petition,
appointment of counsel, and an amended PCRA petition, the trial court
reinstated Whitfield’s direct appellate rights. Whitfield filed this timely direct
appeal. Additionally, counsel filed a petition to withdraw from representation
and an Anders brief. Whitfield did not retain independent counsel or file a
pro se response to the Anders brief.
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1 18 Pa.C.S.A. §§ 6110.2(a), 6105(a)(1), 4304(a)(1), and 2705.
2 42 Pa.C.S.A. §§ 9541-46.
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Before we may consider the issues raised in the Anders brief, we must
first consider counsel’s petition to withdraw from representation. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding
that, when presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw). Pursuant to Anders, when counsel believes an appeal is frivolous
and wishes to withdraw from representation, counsel must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court's attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(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.
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Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, counsel has complied with each of the requirements of Anders.
Counsel indicated that he reviewed the record and concluded that Whitfield’s
appeal is frivolous. Further, the Anders brief substantially comports with the
requirements set forth by our Supreme Court in Santiago. Finally, the record
included a copy of the letter that counsel sent to Whitfield stating counsel’s
intention to seek permission to withdraw, and advising Whitfield of his right
to proceed pro se or retain new counsel and file additional claims. Accordingly,
as counsel has complied with the procedural requirements for withdrawing
from representation, we will conduct an independent review to determine
whether Whitfield’s appeal is wholly frivolous.
In the Anders brief, counsel sets forth fifteen issues which Whitfield
could raise, but, ultimately, would be frivolous.3 Upon review, we agree with
counsel that the issues are frivolous.
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3 For ease of disposition, we have reordered the issues in the Anders brief
slightly.
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Issues one, two, and three in the Anders brief relate to the trial court’s
rulings on Whitfield’s pre-trial motions:
1. Did the [t]rial [c]ourt err when it failed to entertain [Whitfield's]
pro se Motion to Suppress that was filed while he was represented
by counsel?
2. Did the [t]rial Court err when it did not rule on [Whitfield’s] pro
se motions that he filed when he had counsel, when he asked the
court to reconsider [him] a pro se litigant?
3. Did the [t]rial [c]ourt err when it [did not rule on Whitfield's pro
se] motion under Rule 600 to dismiss the charges?
Anders Brief at 13.
Prior to trial, Whitfield submitted a pro se motion to suppress and
several other pro se motions, including a motion to remove counsel of record.
Whitfield, however, was represented by counsel at the time. Counsel did not
refile these motions. Consequently, the trial did not consider these motions.
It is well established that hybrid representation is not permitted.
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993). A defendant does
not have a right to file a pro se motion when he is represented by counsel.
See Commonwealth. v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007).
Such a pro se motion is a nullity, and has no legal effect. See id.;
Commonwealth v. Piscanio, 608 A.2d 1027, 1029 n. 3 (Pa. 1992). Thus,
the trial court did not err in refusing to consider these motions.4
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4 Additionally, we note that Whitfield failed to adhere to proper
procedure in handling some of his pro se motions and did not file them
(Footnote Continued Next Page)
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Additionally, the trial court did not decide Whitfield’s pro se motion to
dismiss his case under Rule 600 for violation of his speedy trial rights, which
he filed after counsel withdrew from the case. “Rule 600 generally requires
the Commonwealth to bring a defendant . . . to trial within 365 days of the
date the complaint was filed.” Commonwealth v. Hunt, 858 A.2d 1234,
1240 (Pa. Super. 2004) (en banc), appeal denied, 875 A.2d 1073 (2005). “In
assessing a Rule 600 claim, the court must exclude from the time for
commencement of trial any periods during which the defendant was
unavailable, including any continuances the defendant requested and any
period for which he expressly waived his rights under Rule 600.” See
Commonwealth v. Brown, 875 A.2d 1128, 1134 (Pa. Super. 2005). Our
standard of review in evaluating a Rule 600 claim is whether the trial court
abused its discretion. Commonwealth v. Brock, 61 A.3d 1015, 1017 (Pa.
2013).
Here, the Commonwealth filed the criminal complaint on August 11,
2017, and Whitfield’s trial began with jury selection on August 14, 2018.
Although the trial commenced after the 365 days allowed under Rule 600,
there was a delay of 38 days attributable to Whitfield’s request for a
continuance. Moreover, this continuance included a waiver for Rule 600
____________________________________________
as required under Pa.R.Crim.P. 576(a)(1). Instead, he merely
submitted them directly to the judge.
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purposes. Therefore, the 38 days must be excluded from the time
computation, which rendered Whitfield’s trial timely under Rule 600.
Issues one, two, and three are frivolous.
Issue four in the Anders brief pertains to jury selection in Whitfield’s
case:
4. Did the [t]rial [c]ourt err when it allowed the Commonwealth
to issue preemptory challenges striking all jurors who were the
same race as the [Whitfield] in violation of Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986).
Anders Brief at 13-14. In Batson, the United States Supreme Court “upheld
the constitutional limitations on a prosecutor's use of peremptory challenges
to purposely exclude members of a defendant's race from participating as
jurors.” Commonwealth v. Dinwiddie, 542 A.2d 102, 104 (Pa. Super.
1998).
Upon review, however, we observe, as the trial court did, that Whitfield
failed to preserve this issue for our appeal. No objection was made to the jury
selection proceeding or as to any of the jurors stricken at the time of jury
selection. In fact, following jury selection, the trial court specifically asked the
parties whether the jury as seated was acceptable; both responded “yes.”
“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a). Because Whitfield failed to preserve
this issue, it is waived. Issues which are waived are frivolous. See
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding
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that when an issue has been waived, “pursuing th[e] matter on direct appeal
is frivolous”). Issue four is frivolous.
Issue five in the Anders brief challenges the trial court’s jury instruction
regarding possession of a firearm:
5. Did the [t]rial [c]ourt err when it gave a jury instruction defining
possession of the firearm at issue instead of constructive
possession of the firearm, when none of the firearms at issue were
found on the person of the Appellant?
Anders Brief at 14.
“‘In examining jury instructions, our [standard] of review is to determine
whether the trial court committed a clear abuse of discretion or an error of
law controlling the outcome of the case.’” Commonwealth v. Bradley, 232
A.3d 747, 759 (Pa. Super. 2020) (quoting Commonwealth v. Chambers,
980 A.2d 35, 50 (Pa. 2009) (quotations omitted)). Moreover, “[i]n reviewing
a challenge to a jury instruction the entire charge is considered, not merely
discrete portions thereof.” Commonwealth v. Eichinger, 915 A.2d 1122,
1138 (2007) (quotations omitted).
In order to preserve a claim that a jury instruction was erroneously
given, an appellant must have objected to the charge at trial. See
Commonwealth v. Spotz, 84 A.3d 294, 318 n. 18 (Pa. 2014) (citations
omitted); Pa.R.A.P. 302(b) (“A general exception to the charge to the jury will
not preserve an issue for appeal. Specific exception shall be taken to the
language or omission complained of.”); Pa.R.Crim.P. 647(C) (“No portions of
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the charge nor omissions from the charge may be assigned as error, unless
specific objections are made thereto before the jury retires to deliberate.)
Here, the trial court did not give the jury a constructive possession
charge, but only a charge on actual possession. However, Whitfield did not
object to the trial court’s charge to the jury after it was given. The trial court
noted that Whitfield did not even request a constructive possession charge.
Trial Court Opinion, 9/8/20, at 7. Instead, the trial court noted that Whitfield
“specifically requested the charge for the defense of necessity on the theory
that it was necessary for [Whitfield] to possess the firearm by picking it up
from the couch and hiding it in his bedroom.” Id. (emphasis in original).
Because Whitfield failed to preserve issue five, it is waived and therefore
frivolous.
Issues six, seven, eight, and nine in the Anders brief challenge the
sufficiency of the evidence to sustain Whitfield’s various convictions:
6. Was the evidence against [Whitfield] sufficient to sustain his
conviction for Possession of a Firearm With an Altered
Manufacturer's Number in this matter?
7. Was the evidence against [Whitfield] sufficient to sustain his
conviction for Person Not to Possess a Firearm in this matter?
8. Was the evidence against [Whitfield] sufficient to sustain his
conviction for [EWOC] in this matter?
9. Was the evidence against [Whitfield] sufficient to sustain his
conviction for [REAP] in this matter?
Anders Brief at 14.
In reviewing a sufficiency of the evidence claim,
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we must determine whether the evidence admitted at trial, as well
as all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted).
We first consider issues six and seven, the sufficiency of the evidence
to convict Whitfield of possession of a firearm with an altered manufacturer's
number and person not to possess. To establish possession of a firearm with
an altered number, the Commonwealth had to demonstrate that Whitfield
possessed a gun that had the manufacturer’s number “altered, changed,
removed or obliterated.” 18 Pa.C.S.A. § 6110.2(a). To establish the offense
of persons not to possess firearms, the Commonwealth had to show that
Whitfield was previously convicted of an enumerated offense and that he
possessed a firearm. See 18 Pa.C.S.A. § 6105. This Court has held that,
“[p]ossession can be found by proving actual possession, constructive
possession, or joint constructive possession.” Commonwealth v. Parrish,
191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted).
Here, it was undisputed that the serial number was obliterated, and that
Whitfield was a person prohibited from possessing a firearm. Thus, the focus
of this issue is on the element of possession. Sufficient evidence was
presented at trial to satisfy this element. A police officer testified that
Whitfield told him that he got the gun and shot at the alleged intruders. During
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his own testimony, Whitfield claimed that he took the gun off of the sofa and
hid it for safe keeping. Under either version of events there was sufficient
evidence to prove that Whitfield possessed the gun. Issues six and seven are
frivolous.
Next, we consider issues eight and nine, the sufficiency of the evidence
to convict Whitfield of EWOC and REAP. “[T]o support a conviction under the
EWOC statute, the Commonwealth must establish each of the following
elements: (1) the accused is aware of his/her duty to protect the child; (2)
the accused is aware that the child is in circumstances that could threaten the
child's physical or psychological welfare; and (3) the accused has either failed
to act or has taken action so lame or meager that such actions cannot
reasonably be expected to protect the child's welfare.” Commonwealth v.
Wallace, 817 A.2d 485, 490-91 (Pa. Super. 2002) (citations and internal
quotation marks omitted); 18 Pa.C.S.A. § 4302(a)(1).
To establish a conviction for REAP, the Commonwealth had to show
that Whitfield recklessly engaged in conduct which placed or may have placed
another person in danger of death or serious bodily injury.” See 18 Pa.C.S.A.
§ 2705. “Serious bodily injury” is defined as “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.A. § 2301. Reckless endangerment of another person
(“REAP”) requires the creation of danger, so the Commonwealth must prove
the existence of an actual present ability to inflict harm to another.
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Commonwealth v. Reynolds, 835 A.2d 720, 727-28 (Pa. Super. 2003). This
Court has held that both a handgun and a BB gun are capable of causing
serious bodily injury or death. Commonwealth v. Peer, 684 A.2d 1077,
1081 (Pa. Super. 1996).
Here, Whitfield undeniably had a duty to care for his son who was in the
front bedroom above the living room where Whitfield was shooting. Although
Whitfield supposedly shot at intruders in the kitchen which was toward the
back of the house, there was a shell at the threshold of the front door. There
also was a bullet hole in the wall between the kitchen and living room. The
bullet easily could have gone through the ceiling to where his son was sleeping
instead. Additionally, an officer testified that when you fire a gun inside a
home many things could happen. He further stated that it is very difficult to
know whether the bullet will ricochet off of something. N.T., 10/12/18, at 49.
From this evidence, the jury could conclude that Whitfield’s conduct in
shooting a gun in a confined space with his son nearby was reckless and put
his son’s welfare in danger. See Commonwealth v. Shaw, 203 A.3d 281,
287 (Pa. Super. 2019) (holding sufficient evidence to convict the defendant of
REAP where he discharged a firearm into the ceiling of his porch and in close
proximity to an individual).
Based upon our review of the record and viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, we conclude
that there was sufficient evidence to sustain Whitfield’ convictions, and
therefore issues eight and nine are frivolous.
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Issues ten, eleven, twelve, and thirteen in the Anders Brief challenge
the weight of the evidence:
10. Was [Whitfield's] conviction for Possession of a Firearm with
an Altered Manufacturer's Number against the weight of the
evidence?
11. Was [Whitfield’s] conviction for Person Not to Possess a
Firearm against the weight of the evidence?
12. Was [Whitfield’s] conviction for [EWOC] against the weight of
the evidence?
13. Was [Whitfield's] conviction for [REAP] against the weight of
the evidence?
Anders Brief at 15.
Appellate review of a weight of the evidence claim is limited to a review
of the judge's exercise of discretion” in determining whether the evidence was
against the weight of the evidence. Commonwealth v. Evans, 201 A.3d
248, 250 (Pa. Super. 2018) (citations omitted). However, weight claims must
be raised first with the trial court. Pa.R.Crim.P. 607. Appellants must
preserve weight claims in a post-sentence motion, by a written motion before
sentencing, or orally prior to sentencing. Id.; Commonwealth v. Priest, 18
A.3d 1235, 1239 (Pa. Super. 2011). Failure to properly preserve the claim
will result in its waiver. Commonwealth v. Thompson, 93 A.3d 478, 490
(Pa. Super. 2014).
Upon review, we observe that Whitfield did not preserve his weight
claims for our review by first presenting them to the trial court.
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Consequently, they are waived on appeal. Issues ten, eleven, twelve, and
thirteen are frivolous.
Finally, issues fourteen and fifteen in the Anders brief challenge the
legality and discretionary aspects of Whitfield’s sentence:
14. Was the sentence [Whitfield] received in this matter illegal as
it failed to merge the charges of [EWOC] with the charge of
[REAP]?
15. Did the [t]rial [c]ourt abuse its discretion when imposing the
sentence [Whitfield] received for his convictions in this matter?
Anders Brief at 15.
“A claim that convictions merged for sentencing purposes is a challenge
to the legality of sentence.” Commonwealth v. Klein, 795 A.2d 424, 430
n.4 (Pa. Super. 2002). “A claim that the trial court imposed an illegal sentence
by failing to merge sentences is a question of law.” Commonwealth v.
Williams, 958 A.2d 522, 527 (Pa. Super. 2008) (quotation omitted).
Accordingly, our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014,
affirmed, 140 A.3d 651 (2016). Merger of offenses is appropriate where: “(1)
the crimes arise from a single criminal act; and (2) all of the statutory
elements of one of the offenses are included in the statutory elements of the
other offense.” Commonwealth v. Crissman, 195 A.3d 588, 591 (Pa.Super.
2018); see also 42 Pa.C.S.A. § 9765.2.
Here, the trial court properly imposed separate sentences of probation
for EWOC and REAP to run concurrently to Whitfield’s firearm sentences. This
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Court has found that REAP and EWOC do not merge. After thoroughly
examining the requirements of each statute, we explained:
A conviction for reckless endangerment requires proof of conduct
that places or may place another person in danger of death or
serious bodily injury, while a conviction for endangering the
welfare of children only requires proof of circumstances that could
threaten the child's physical or psychological welfare. Thus,
reckless endangerment requires proof of a fact that endangering
the welfare of children does not. In other words, the element of
conduct which places or may place a person in danger of death or
serious bodily injury is not subsumed within proof that a child is
placed in circumstance that could threaten the child. Thus,
reckless endangerment is not a lesser-included offense of
endangering the welfare of children, and the crimes do not merge.
Commonwealth. v. Martir, 712 A.2d 327, 329–30 (Pa. Super. 1998). We
therefore conclude that the trial court did not err by failing to merge Whitfield’s
sentence for EWOC and REAP.
Lastly, in considering whether the trial court abused its discretion when
it sentenced Whitfield to an aggregate sentence of two-and-a-half (2½) to five
(5) years of incarceration, followed by five (5) years of probation, we note
that a challenge to the discretionary aspects of a sentence does not entitle an
appellant to appellate review as of right. Commonwealth v. Sierra, 752
A.2d 910, 912 (Pa. Super. 2000). This Court has explained that, to reach the
merits of a discretionary sentencing issue, we must conduct a four-part
analysis to determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
preserved his issue; (3) whether [a]pellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence [in
accordance with 2119(f)]; and (4) whether the concise statement
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raises a substantial question that the sentence is appropriate
under the sentencing code. . . . [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, although Whitfield filed his appeal timely, he did not raise this
issue at his sentencing hearing or file a motion to modify his sentence.
Consequently, he failed to preserve this issue for our consideration. Because
Whitfield failed to satisfy the requirements under Colon, he is not entitled to
review of this issue.
Issues fourteen and fifteen are frivolous.
In sum, we conclude that all of Whitfield’s issues are wholly frivolous.
Furthermore, as required by Anders, we have independently reviewed the
record to determine whether there are any non-frivolous issues present in this
case. Our review of the record discloses no other non-frivolous issues that
Whitfield could raise that counsel overlooked. See Dempster, supra.Having concluded that there are no meritorious issues, we grant
counsel’s petition to withdraw, and affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/09/2021
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