J-S45043-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA

 Appellee

 v.

RICHARD BRANDON NAYLOR

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 2964 EDA 2016

Appeal from the Judgment of Sentence August 18, 2016

in the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0004290-2015

BEFORE: GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 08, 2017

Richard Brandon Naylor (Appellant) appeals from his judgment of 

sentence imposed after he was convicted of aggravated assault, firearms not 

to be carried without a license, and persons not to possess firearms. In 

addition, Appellant’s counsel has filed a petition to withdraw and a brief 

pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the 

judgment of sentence and grant the petition to withdraw. 

The trial court summarized the facts established by the 

Commonwealth at Appellant’s trial. 

On June 4, 2015, Chief James Nolan [and other police 

officers from the Chester City police department] were 

conducting a surveillance operation along the city’s 400 block of 

Bickley Street. At this time of night, there was street lighting on 

Bickley Street illuminating the area. 
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* * * 

[After exiting a residence the police had secured,] Chief 

Nolan observed [that] Officer William Carey had come in contact 

with [Appellant] on the opposite side of the street ... and began 

to converse with [Appellant]. The chief described [Appellant] as 

a black male with a beard and short hair wearing dark clothing.

Chief Nolan proceeded across the street toward the 

direction of Officer Carey and [Appellant] while the two men 

continued to speak. When he was only about three to five feet 

away, Chief Nolan observed Officer Carey put his right hand on 

[Appellant], who reacted by pushing the officer and 

simultaneously pulling a semi-automatic firearm from his 

waistband. On seeing the handgun, Chief Nolan shouted “gun” 

to alert Officer Carey and the other nearby police [officers] that 

[Appellant] was in possession of a firearm. [Appellant] then 

fled.

With [Appellant’s] taking flight, Officer Carey, Chief Nolan, 

and Officer Marc Barag immediately commenced a foot chase 

down Bickley Street before pursuing him into a nearby alley.

Seconds after entering the alleyway, [Appellant] fired his 

handgun. Chief Nolan heard the sound of the gunshot as well as 

observed a muzzle flash. ([According to a detective testifying as 

an expert at trial, a] muzzle flash [occurs] “...when a cartridge is 

discharged [and] the gases that are burned from the powders ... 

flame out [of] the front of the muzzle, ... almost like a little small 

fireball coming out.”) Chief Nolan testified that he was in such 

close proximity to the discharge of [Appellant’s] gun that he felt 

the percussive force from the fired round. ... Following this initial 

shot, there were several other rounds fired that Chief Nolan was

later advised were discharged by Officer Carey. Officer Barag 

then collided with Chief Nolan in the alleyway before they both 

continued their chase. 

The pursuing officers finally lost [sight] of [Appellant] 

resulting from [Appellant’s] climbing a fence located at the 

alley’s end. ... 

[Since Chief Nolan had kept Appellant in his sight between 

Chief Nolan’s initial observations and Appellant’s clearing of the 

fence,] at trial, Chief Nolan, without equivocation, identified 
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[Appellant] as the man Officer Carey approached that night, 

toward whom he had walked within a distance of three to five 

feet, and who[m] he and other police officers [had] chased into 

a close[-]by alleyway where [Appellant] fired his semi-automatic 

handgun before fleeing over the fence at the alley’s end.

* * *

Like Chief Nolan, Officer Barag [testified that he] observed 

Officer Carey make contact with [Appellant] who, inter alia, he 

described as [a black male with] a beard. Following Officer 

Carey’s initial interaction with [Appellant], the officer proceeded 

to walk over to where the two men were located. Officer Barag 

testified that when approaching them, he could “... see a 

hundred percent the one [] side of [Appellant’s] face[,] ... a 

perfect profile of his face ....”

* * *

From the observations of his clearly[-]visible facial features 

on approaching him continuing through those of the ensuing foot 

chase, Officer Barag, at trial, absent any qualifications, identified 

[Appellant] as the black male Officer Carey encountered that 

night, who on fleeing was pursued by police into the close by 

alleyway, where he discharged a firearm prompting Officer Carey 

to return fire.

Officer [Carey] also testified as to his observations of that 

evening, June 4, 2015. This officer detailed that on the night in 

question he and other participating police were wearing plain 

clothes and vests emblazoned with the word “POLICE.” Officer 

Carey also had his police badge displayed hanging from a chain 

around his neck. Officer Carey recounted [that] beyond the 

illumination of the block from the street lights, throughout the 

incident he was utilizing his police flashlight. He as well testified 

there was some lighting about the breezeway emanating from 

the houses forming the alley. 

Responding to the suspicious condition radio calls, Officer 

Carey arrived in the vicinity .... On exiting his police vehicle, the 

officer saw two persons walking along the block followed by 

[Appellant]. After the first two persons crossed over in front of 

Officer Carey, they pointed and otherwise indicated to 

[Appellant]. Officer Carey decided to speak to [Appellant]. 
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In addition to the police badge and attire he was wearing, 

Officer Carey verbally identified himself as law enforcement 

three to four times, approached [Appellant], and from a distance 

of two feet commenced a discussion with him. The officer 

inquired of [Appellant] his recent whereabouts. [Appellant] 

answered Officer Carey’s question, but when next asked for his 

name provided a mumbled reply causing the officer to ask for 

identification. On Officer Carey’s request, [Appellant] 

immediately turned his body to the side in what the officer 

characterized as a “bladed,” “defensive posture.” ...Officer Carey 

next grasped at [Appellant] prompting [Appellant] to violently 

push off the officer and immediately flee down Bickley Street.

[Appellant] continued a short distance east on Bickley 

Street before running down a close[-]by alley. While chasing 

[Appellant], together with Officer Barag and Chief Nolan, Officer 

Carey yelled numerous times for him to stop running [but his 

warnings were] ignored. 

On [Appellant’s] reaching the fence at the end of the 

breezeway, he and Officer Carey were approximately 15 feet 

from each other when the officer noticed a silver firearm with 

black grips on the left side of [Appellant’s] body. Just a second 

later, Officer Carey heard a gunshot and saw a muzzle flash at 

the alleyway’s end. In response to [Appellant’s] gunfire, Officer 

Carey drew his weapon and discharged five shots. [Appellant] 

then climbed over the fence located at the end of the alley and 

escaped. 

As he was focused on the male from the time the other 

two persons walking along Bickley Street brought [Appellant] to 

his attention, including a discussion and interaction with him 

from a mere two feet, continuing throughout the pursuit into the 

nearby alleyway, and [Appellant’s] discharging of the firearm 

while in the alley when just some 15 feet away, Officer Carey, at 

trial, without any reservations, identified [Appellant] as the black 

male he directly interacted with that night, the same individual 

he chased down Bickley Street into the close[-]by breezeway 

before [Appellant turned to his left back towards the officers] 

and fired a semi-automatic handgun resulting in the officer 

returning fire. 

* * *
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After the police established a perimeter around the Bickley 

Street area, Officer William J. Murphy ... and his police tracking 

dog were called to the shooting scene. ...After the police dog 

swept through the yard and [Appellant] was not located, Officer 

Murphy observed a silver Taurus semi-automatic handgun 

against the fence and alerted assisting officers[,] resulting in the 

firearm’s recovery just some ten minutes subsequent to the 

shooting. 

[At trial, Detective Louis Grandizio, testifying as an expert 

trial without objection, recounted his determination that (1) the 

recovered Taurus handgun was operable and did not malfunction 

or accidentally discharge, and (2) a cartridge recovered at the 

scene was fired by the recovered Taurus handgun. Appellant did 

not have a license to carry this firearm and his prior criminal 

convictions prohibited him from possessing this firearm.]

Jorge Rivera, a residen[t] of Bickley Street, also appeared 

at trial as a prosecution witness.40 Mr. Rivera explained that on 

the night in question he saw Officer Carey approach a black 

male. After their initial interaction, he observed this individual 

flee from the police on Bickley Street before turning down the 

alleyway. While watching the male run from the police, Mr. 

Rivera observed this person had in his possession a firearm 

located about his waist. Shortly after this individual and the 

pursing police ran into the breezeway[,] Mr. Rivera heard 

gunshots. 

______

40 Mr. Rivera testified through a Spanish court interpreter. 

Within a week of the shooting (June 10, 2015), Mr. Rivera 

visited the Chester City Police Department and was shown a 

photo array by Detective Lawrence Weigand ... and a Spanish 

speaking policeman, Officer Demoss Jones. The photo array 

consisted of eight similarly[-]depicted ... black males [who had 

physical appearances similar to Appellant’s]. Mr. Rivera circled 

on this photo array the person he saw on the night in question 

fleeing from the police while in possession of handgun about his 

waistband and appropriately identified the same by also signing 

and dating the array form. [Although at trial Mr. Rivera was 

unable to identify Appellant in court, Detective Weigand testified 

that the] individual circled by Mr. Rivera via the photo array was 

[Appellant]. 
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Trial Court Opinion, 12/9/2016, at 15-23 (record citations, duplicative 

numbers, and some footnotes omitted). 

After hearing the above-summarized evidence, the jury convicted 

Appellant of firearms not to be carried without a license and aggravated 

assault – attempt by physical menace to put enumerated person in fear of 

imminent serious bodily injury (Officer Carey). The jury acquitted Appellant 

of two counts of aggravated assault based upon Chief Nolan and Officer 

Barag as victims. On the same day, after the parties stipulated to 

Appellant’s prior criminal convictions, the trial court found Appellant to be 

guilty of persons not to possess firearms. 

On August 18, 2016, the trial court sentenced Appellant to five to ten 

years’ of incarceration for persons not to possess firearms, a concurrent 

term of three to six years’ of incarceration for aggravated assault, and a 

consecutive term of seven years’ probation for firearms not to be carried 

without a license. 

After the ten-day time period for filing post-sentence motions expired, 

Appellant filed a petition for reconsideration. The trial court permitted 

Appellant to proceed nunc pro tunc, but denied the petition on September 9, 

2016.1 Through his counsel, Appellant timely filed a notice of appeal.2 The 

 

1 An untimely-filed post-sentence motion tolls the appeal period only when 

the trial court accepts it under its limited authority to allow the filing of a 

post-sentence motion nunc pro tunc. Commonwealth v. Capaldi, 112 

A.3d 1242, 1244 (Pa. Super. 2015).
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trial court ordered Appellant to file a concise statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant 

complied. 

In this Court, Appellant’s counsel filed both an Anders brief and a 

petition to withdraw as counsel. Accordingly, the following principles guide 

our review of this matter.

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 nonfrivolous 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).

 

2 Despite still being represented by counsel, prior to sentencing, Appellant 

prematurely filed pro se a notice of appeal, which was later dismissed by this 

Court. 
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Our Supreme Court has clarified portions of the Anders procedure as 

follows. 

Accordingly, we hold that in 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 

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.

Based upon our examination of counsel’s petition to withdraw and 

Anders brief, we conclude that counsel has complied substantially with the 

above requirements.3 Once “counsel has met these obligations, ‘it then 

becomes the responsibility of the reviewing court to make a full examination 

of the proceedings and make an independent judgment to decide whether 

the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113 

A.3d 1246, 1249 (Pa. Super. 2015) (quoting Santiago, 978 A.2d at 354 n. 

5).

According to counsel, the only issue of arguable merit is whether the 

Commonwealth failed to prove beyond a reasonable doubt that Appellant 

committed the offenses charged due to Jorge Rivera’s failure to identify 

Appellant in the courtroom at trial. 

 

3 Appellant has not responded to counsel’s petition to withdraw.
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We have expressed the following regarding a challenge to the 

sufficiency of the evidence produced at trial.

[O]ur standard of review of sufficiency claims requires that we 

evaluate the record in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. Evidence will be 

deemed sufficient to support the verdict when it establishes each 

material element of the crime charged and the commission 

thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. Any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances.

The Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. Accordingly, [t]he fact that the 

evidence establishing a defendant’s participation in a crime is 

circumstantial does not preclude a conviction where the evidence 

coupled with the reasonable inferences drawn therefrom 

overcomes the presumption of innocence. Significantly, we may 

not substitute our judgment for that of the fact finder; thus, so 

long as the evidence adduced, accepted in the light most 

favorable to the Commonwealth, demonstrates the respective 

elements of a defendant’s crimes beyond a reasonable doubt, 

the appellant’s convictions will be upheld.

Commonwealth v. Hecker, 153 A.3d 1005, 1008 (Pa. Super. 2016) 

(citation omitted).

In determining whether a particular identification was reliable, the 

court 

should consider the opportunity of the witness to view the 

criminal at the time of the crime, the witness’[s] degree of 

attention, the accuracy of his or her prior description of the 

criminal, the level of certainty demonstrated at the 

confrontation, and the time between the crime and the 

confrontation. The opportunity of the witness to view the actor at 
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the time of the crime is the key factor in the totality of the 

circumstances analysis. 

[E]vidence of identification need not be positive and 

certain to sustain a conviction. Although common items of 

clothing and general physical characteristics are usually 

insufficient to support a conviction, such evidence can be used 

as other circumstances to establish the identity of a perpetrator. 

Out-of-court identifications are relevant to our review of 

sufficiency of the evidence claims, particularly when they are 

given without hesitation shortly after the crime while memories 

were fresh. Given additional evidentiary circumstances, any 

indefiniteness and uncertainty in the identification testimony 

goes to its weight.

Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014) 

(citations omitted).

We agree with counsel that a challenge to the sufficiency of the 

evidence based upon Mr. Rivera’s failure to make an in-court identification of 

Appellant is frivolous. All three of Appellant’s convictions stem from the 

same incident: his shooting a firearm, for which he had no license to carry 

and was not permitted to possess, in a narrow alleyway in close proximity to

Officer Carey and two other officers, all of whom were pursuing him. 

Although he did not make an in-court identification, Mr. Rivera 

acknowledged at trial that he had identified the man he saw running from 

police with a pistol in a photograph array shortly after the shooting, and 

Detective Weigand testified that the man Mr. Rivera identified was Appellant. 

N.T., 6/22/2016, at 93, 97. The jury was free to determine that Appellant 

was the shooter based upon the evidence of Mr. Rivera’s out-of-court 

identification made close in time to the incident. Commonwealth v. 
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Sanders, 42 A.3d 325, 329 (Pa. Super. 2012) (concluding that there was 

sufficient evidence to support convictions for aggravated assault, possession 

of an instrument of crime, and persons not to possess firearms based upon 

prior out-of-court identifications admitted into evidence, notwithstanding 

witnesses’ failure to make in-court identifications). 

Moreover, Officer Carey, Chief Nolan, and Officer Barag, each of whom 

had ample opportunity to view Appellant during the incident, testified 

unequivocally that Appellant is the person who ran from police and shot the 

firearm. N.T., 6/21/2016, at 145, 167; N.T., 6/22/2016, at 9-10. This 

testimony is sufficient to sustain Appellant’s convictions notwithstanding Mr. 

Rivera’s failure to make an in-court identification. Commonwealth v. 

Patterson, 940 A.2d 493, 502 (Pa. Super. 2007) (citing Commonwealth v. 

Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (stating that a positive, 

unqualified identification by one witness is sufficient for conviction)). The 

testimony of all of the witnesses need not align in order to withstand a 

sufficiency challenge; disparities between witnesses’ testimony “does not 

render the evidence insufficient because it is within the province of the fact 

finder to determine the weight to be given to the testimony and to believe 

all, part, or none of the evidence.”4 Id. (citations omitted).

 

4 A claim challenging the weight of the evidence would also be frivolous. As 

the trial court correctly notes, Appellant has waived any weight claims based 

upon his failure to preserve such a claim in a pre- or post-sentence motion. 

Trial Court Opinion, 12/9/2016, at 11 n. 36 (citing Commonwealth v. 
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Based on the foregoing, we conclude that a challenge to the sufficiency 

of the evidence based upon Mr. Rivera’s failure to make an in-court 

identification is frivolous. Moreover, we have conducted “a full examination 

of the proceedings” and conclude that “the appeal is in fact wholly frivolous.” 

Flowers, 113 A.3d at 1248. Thus, we affirm the judgment of sentence and 

grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2017

 

Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012); Commonwealth v. 

Bryant, 57 A.3d 191, 196 (Pa. Super. 2012); Pa.R.Crim.P. 607(a)).