J-S80039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ORVILLE BARRETT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1515 EDA 2018

Appeal from the Judgment of Sentence August 24, 2017

In the Court of Common Pleas of Lehigh County Criminal Division at 

No(s): CP-39-CR-0002443-2016

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 21, 2019

Appellant Orville Barrett appeals from the judgment of sentence 

following his conviction for third-degree murder.1 Appellant’s counsel has filed 

a petition to withdraw and an Anders/Santiago2 brief. We affirm and grant 

counsel’s petition to withdraw. 

On the evening of May 26, 2016, Appellant returned to his residence at 

3271⁄2 North 15th Street in Allentown after being involved in an altercation 

with a neighbor. Appellant lived at the residence with his teenage son Trey 

Barrett (Trey), his mother Monica Johnson-Young (Johnson-Young), and his 

stepfather Leacroft Owen Young (Victim). Inside the residence, Appellant 

slammed doors and caused a commotion. Johnson-Young asked Appellant 

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1 18 Pa.C.S. § 2502(c). 

2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). 
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why he was upset, and Appellant accused Victim of ordering another man to 

beat him up. 

At approximately 9:00 p.m., Victim and Johnson-Young were in the 

backyard. Appellant and Trey were in the kitchen. Appellant retrieved a knife 

and approached the door to the backyard. Trey thought Appellant “was acting 

weird,” and he asked Appellant to put down the knife. N.T. Trial, 7/19/17, 

49. Appellant would not comply, and Trey tried to take the knife from him. 

Trey could not gain control of the knife, and Appellant continued toward the 

door. Trey attempted to block Appellant’s path, but Appellant forced his way 

into the yard. 

Trey warned Johnson-Young that Appellant was approaching with a

knife. Johnson-Young stopped Appellant and asked for the knife, but 

Appellant denied possessing it. Johnson-Young noticed that Appellant’s “voice 

was very funny, not even sound[ing] like him.” Id. at 75. Appellant walked 

past Johnson-Young and approached Victim, who sat in a chair. Trey watched 

as Appellant stabbed Victim in the chest.3 Johnson-Young did not see the 

stabbing, but she heard a noise “like if you . . . would hit somebody . . . with 

something.” Id. at 76. In response, Johnson-Young picked up a broomstick, 

struck Appellant, and chased him out of the yard. 

Johnson-Young turned her attention to Victim, who rose from his chair 

and approached her. Victim said, “He stabbed me,” then fell over. Id. at 81. 

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3 Trey also testified that Appellant, Victim, and Johnson-Young were the only 

people in the yard at the time of the stabbing. 
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Johnson-Young caught Victim and Trey called 911. Paramedics arrived and 

rushed Victim to the hospital where he died shortly thereafter. An autopsy 

revealed the cause of death was a single stab wound below the right clavicle 

and above the right breast. 

At 10:35 p.m., police located Appellant, who was passed out on the front 

porch of a residence approximately two blocks away from the crime scene. 

Officers approached Appellant and detected a strong odor of alcohol on his 

person. Tests indicated that Appellant’s blood alcohol concentration was .19% 

on the night of the murder. Additional forensic testing revealed the presence 

of Victim’s blood on the T-shirt worn by Appellant at the time of his arrest. 

Appellant proceeded to a bench trial at which Trey and Johnson-Young

testified for the Commonwealth. Appellant testified in his own defense. 

According to Appellant, a gang of six or seven men from the neighborhood 

assaulted and robbed him shortly before the stabbing. Appellant ran to his 

residence to flee from the attackers. Once inside, Appellant decided he 

needed to fix the gate in the backyard. Appellant claimed that he entered the 

yard and saw Victim bending down, holding his stomach. Appellant asked 

Victim what happened, and Victim “said a boy stabbed him.” N.T. Trial, 

7/20/17 at 97. Appellant testified that he saw the alleged perpetrator exit 

through the gate and gave chase, but he could not catch him. 

Following trial, the trial court found Appellant guilty of third-degree 

murder. With the benefit of a presentence investigation report, the court 
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sentenced Appellant to twenty to forty years’ imprisonment on August 24, 

2017. Appellant did not file post-sentence motions or a notice of appeal. 

On February 6, 2018, Appellant timely filed a pro se petition under the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court 

appointed current counsel on February 20, 2018. On April 20, 2018, the court 

reinstated Appellant’s direct appeal rights and directed Appellant to file a 

notice of appeal nunc pro tunc within thirty days. 

Appellant timely filed a notice of appeal nunc pro tunc on May 16, 2018. 

On June 12, 2018, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) 

concise statement of matters complained of on appeal. Counsel timely filed a 

statement of intent to file an Anders/Santiago brief, pursuant to Pa.R.A.P. 

1925(c)(4). The court did not file a responsive opinion. 

On August 24, 2018, counsel filed a petition to withdraw and an 

Anders/Santiago brief. Counsel included a certificate of service indicating 

that he provided Appellant both the withdrawal petition and the brief. 

Appellant has not filed a pro se brief or a counseled brief with new, privatelyretained counsel. 

In the Anders/Santiago brief, counsel identifies two issues for 

appellate review. Specifically, counsel includes challenges to the sufficiency 

of the evidence supporting Appellant’s third-degree murder conviction and the 

weight of the evidence supporting the verdict. Anders/Santiago Brief at 7. 

Because counsel has filed a petition to withdraw pursuant to 

Anders/Santiago, we must first address counsel’s petition before reviewing
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the merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290 

(Pa. Super. 2007) (en banc). Counsel must comply with the technical 

requirements for petitioning to withdraw by (1) filing a petition for leave to 

withdraw stating that, after making a conscientious examination of the record, 

counsel has determined that the appeal would be frivolous; (2) providing a 

copy of the brief to Appellant; and (3) advising Appellant that he has the right 

to retain private counsel, proceed pro se, or raise additional arguments that 

Appellant considers worthy of the court’s attention. See id. 

Additionally, counsel must file a brief that meets the requirements 

established by the Pennsylvania Supreme Court in Santiago, namely:

(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. 

Santiago, 978 A.2d at 361. Only after determining that counsel has satisfied 

these technical requirements may this Court “conduct an independent review 

of the record to discern if there are any additional, non-frivolous issues 

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 

(Pa. Super. 2015) (citations and footnote omitted); accord Commonwealth 

v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc). 

Counsel has complied with the procedures for seeking withdrawal by 

filing a petition to withdraw, sending Appellant a letter explaining his rights, 
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and supplying Appellant with a copy of the Anders/Santiago brief. See 

Goodwin, 928 A.2d at 290. Moreover, counsel’s Anders/Santiago brief 

complies with the requirements of Santiago. Counsel includes a summary of 

the relevant factual and procedural history, refers to the portions of the record 

that could arguably support Appellant’s claims, and sets forth the conclusion 

that the appeal is frivolous. Counsel explains his reasoning and supports his

rationale with citations to the record and pertinent legal authority. Therefore, 

counsel has complied with the technical requirements for withdrawal, see 

Santiago, 978 A.2d at 361, and we will independently review the record to 

determine if any non-frivolous issues are raised. See Flowers, 113 A.3d at 

1250. 

In the first issue identified in the Anders/Santiago brief, counsel 

discusses a challenge to the sufficiency of the evidence. Anders/Santiago

Brief at 7. Counsel references Appellant’s trial testimony indicating that 

someone else stabbed Victim, but asserts there was sufficient evidence to find 

Appellant guilty of third-degree murder. Id. at 10. 

Our standard of review for sufficiency claims is as follows:

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 
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inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (brackets 

and citation omitted), appeal denied, 165 A.3d 895 (Pa. 2017). 

To sustain a conviction for third-degree murder, “the Commonwealth 

need only prove that the defendant killed another person with malice 

aforethought.” Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) 

(citation omitted). “[M]alice comprehends not only a particular ill-will, but . . 

. also a wickedness of disposition, hardness of heart, recklessness of 

consequences, and a mind regardless of social duty, although a particular 

person may not be intended to be injured.” Id. (brackets and citation 

omitted). “Moreover, the finder of fact may infer malice and specific intent to 

kill based on the defendant’s use of a deadly weapon on a vital part of the 

victim’s body.” Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015) 

(citation omitted). 

Instantly, the Commonwealth presented evidence that Appellant 

believed that Victim had ordered another man to beat him up. Appellant 

retrieved a knife from the kitchen and attempted to enter the yard. Trey

sensed that Appellant was acting “weird” and unsuccessfully attempted to 

disarm Appellant and block his path to the yard. Once Appellant was outside, 
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Johnson-Young unsuccessfully attempted to make Appellant relinquish the 

knife. After Appellant bypassed Johnson-Young, Trey watched Appellant 

approach Victim and stab him in the chest. Here, there was ample evidence 

for the trial court, as the finder of fact, to conclude that Appellant stabbed 

Victim and infer malice based on Appellant’s use of deadly weapon on a vital 

part of Victim’s body. See Hitcho, 123 A.3d at 746; Tucker, 143 A.3d at 

964. Therefore, we agree with counsel’s assessment that a challenge to the 

sufficiency of the evidence was frivolous. 

Counsel also identifies a challenge to the weight of the evidence, but 

Appellant failed to raise any objection to the weight of the evidence in the trial 

court. Therefore, Appellant’s claim is waived. See Pa.R.Crim.P. 607 (stating 

that a defendant must first raise a weight claim with the trial court in a motion 

for new trial before sentencing or in a post-sentence motion); see also 

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding that 

the appellant waived a weight of the evidence challenge because the appellate 

court has nothing to review when the appellant fails to preserve the claim in 

the trial court). 

In sum, we conclude that the claims identified in the Anders/Santiago

brief are frivolous. Moreover, our independent review of the record does not 

reveal any additional, non-frivolous issues in this appeal. See Flowers, 113 

A.3d at 1249. Accordingly, we grant counsel’s petition to withdraw and affirm 

the judgment of sentence. 

Judgment of sentence affirmed. Petition to withdraw granted. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/21/19