J-S46012-17

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JAMES ROBERT HINTON

Appellant No. 403 MDA 2017

Appeal from the Judgment of Sentence February 6, 2017

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000308-2016

BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.: FILED OCTOBER 26, 2017

James Robert Hinton appeals from the judgment of sentence of two to 

four years incarceration imposed following his conviction of one count of 

access device fraud. Jason G. Pudleiner, Esquire, has filed a petition to 

withdraw from representation and a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009). We grant the petition and affirm.

The trial court set forth the facts adduced by the Commonwealth at 

Appellant’s jury trial in its Pa.R.A.P. 1925(a) opinion. 

On November 19, 2015 at 10:02 P.M., Trooper Christopher 

Ashey of the Pennsylvania State Police was dispatched to the 

Gettysburg Lutheran Home in Adams County, Pennsylvania for a 

report of three separate thefts. Three vehicles parked in the 

Lutheran Home parking lot had been broken into. Several items 

had been stolen including three purses with credit cards inside 
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them. One victim reported that her stolen ACNB card was used 

online. On December 7, 2015, another victim reported that her 

stolen Chase Amazon Visa Card was used at the Gettysburg 

Walmart in the amount of $114.01, Gettysburg Sheetz in the 

amount of $41.00, and Fayetteville Rutter's located in Franklin 

County in the amount of $56.85. The victim did not authorize 

any of these transactions. The Walmart and Sheetz stores where 

the victim's credit card was used are located approximately one 

mile from the Lutheran Home traveling straight down Shealer 

Road.

On December 8, 2015, Trooper Jonathan Wolfe of the 

Pennsylvania State Police contacted the Gettysburg Walmart and 

received surveillance photographs of the transaction in which the 

stolen Chase Amazon Visa Card was used by two men 

purchasing milk and printer cartridges totaling $114.01. This 

transaction occurred on November 19, 2015. A Walmart 

employee identified one of the men from the surveillance 

photographs as Appellant.

On December 8, 2015, the Gettysburg Sheetz Loss Prevention 

Team Agent provided Trooper Wolfe with still photographs of a 

transaction at Sheetz involving the same stolen Chase Amazon 

Visa Card that was used at the Gettysburg Walmart. The 

photograph showed a green Ford Explorer with Pennsylvania 

Registration HML0357 stopped at the fuel pump. After consulting 

PennDot Records, Trooper Wolfe concluded that the Ford 

Explorer from the Sheetz surveillance photo was registered to 

Appellant. Trooper Wolf identified the man in both the Walmart 

and the Sheetz photographs as Appellant by referring to 

Appellant's Pennsylvania Driver's License photograph. In both 

the Walmart and Sheetz transactions, Appellant used the stolen 

Chase Amazon Visa Card.

On December 11, 2015, Trooper Wolfe interviewed Appellant at 

his residence, and Appellant admitted that he was the person in 

both the Walmart and Sheetz surveillance photos and that he 

used a credit card for both transactions. Appellant also stated 

that his nephew, Gary Hinton, gave him a credit card to use and 

said that it belonged to his girlfriend.

Trial Court Opinion, 3/21/17, at 1-3. 
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Appellant was convicted by the jury of one count of access device 

fraud, and received the aforementioned sentence. Appellant timely appealed 

from the denial of his post-sentence motion for reconsideration, and 

complied with the order to supply a Pa.R.A.P. 1925(b) statement. The 

matter is now ready for our review. In his Anders brief, Attorney Pudleiner 

raised the following issues before concluding that this appeal was wholly 

frivolous. 

I. Whether the lower court abused its discretion in admitting 

evidence of Appellant's prior record that exceeded 10 

years.

II. Whether the lower court abused its discretion in not 

granting a new trial after the Commonwealth tainted the 

jury pool by repeatedly claiming Appellant testified to 

something that he did not.

Appellant’s brief at 6. 

Since counsel has filed a petition to withdraw, we must first rule on the 

request to withdraw without reviewing the merits of the underlying issues. 

Commonwealth v. Blauser, 166 A.3d 428 (Pa.Super. 2017). In order to 

withdraw from appellate representation pursuant to Anders, certain 

procedural and substantive requirements must be met. Procedurally, 

counsel must 1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has determined 

that the appeal would be frivolous; 2) furnish a copy of the brief to the 

defendant; and 3) advise the defendant that he or she has the right to retain 
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private counsel or raise additional arguments that the defendant deems 

worthy of the court's attention. See Commonwealth v. Cartrette, 83 A.3d 

1030 (Pa.Super. 2013) (en banc). 

Attorney Pudleiner’s petition to withdraw sets forth that he reviewed 

the entire record, and concluded that there are no actual or potential nonfrivolous issues. The brief appends a copy of the letter sent to Appellant, 

which informed Appellant that he had the right to retain new counsel or 

proceed pro se and raise additional arguments on his own behalf. Appellant 

was also furnished with a copy of the Anders brief. Therefore, counsel 

complied with the procedural requirements. 

Next, we examine whether counsel’s Anders brief meets the 

substantive requirements as set forth by our Supreme Court in Santiago. 

The brief 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.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010) (citing 

Santiago, supra at 361). 
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The brief summarized the factual and procedural history of this case, 

and referred to the portions of the record that fail to support these issues 

with citations and discussion of pertinent case law. Thus, this brief is 

compliant with Santiago. 

We now consider the issues raised in the Anders brief. The first issue 

challenges the trial court’s decision to admit certain crimes as impeachment 

evidence pursuant to Pa.R.E. 609, which states in relevant part: 

(a) In General. For the purpose of attacking the credibility of 

any witness, evidence that the witness has been convicted of a 

crime, whether by verdict or by plea of guilty or nolo contendere, 

must be admitted if it involved dishonesty or false statement.

(b) Limit on Using the Evidence After 10 Years. This 

subdivision (b) applies if more than 10 years have passed since 

the witness's conviction or release from confinement for it, 

whichever is later. Evidence of the conviction is admissible only 

if:

(1) its probative value substantially outweighs its 

prejudicial effect; and

(2) the proponent gives an adverse party reasonable 

written notice of the intent to use it so that the party 

has a fair opportunity to contest its use.

Pa.R.E. 609.

During a break in the proceedings, Appellant confirmed that he 

intended to testify and the parties discussed the admissibility of Appellant’s 

crimen falsi convictions in rebuttal. The Commonwealth proposed to 

introduce Appellant’s convictions for: burglary from 1976, two burglaries 

from 1978, burglary from 1979, theft by receiving stolen property from 
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1980, burglary from 1987, theft by unlawful taking from 2000, burglary from 

2004, and criminal conspiracy to commit robbery in 2004.1 The 

Commonwealth noted that, with respect to the 2004 case, “the release from 

jail would be within the 10 years.” N.T., 2/6/17, at 74. The trial court asked 

if Appellant had anything to add. Id. In response, Appellant did not lodge 

any type of objection to this proposal; instead, he simply stated, “[I am] 

obviously not stipulating to the admission, but in terms of the jail sentence, 

unless we have some sort of proof of when he got out of jail, that was never 

discussed before. I don’t have the specific date unless they have some sort 

of specific date.” Id. at 75. The parties limited their subsequent discussion 

to when Appellant was released from incarceration on the 2004 case. The 

trial court then made the following ruling:

Taking it all into consideration, the factors to be weighed, I’m 

looking at whether the probative value outweighs the prejudicial 

effect or vice versa. The factors to be considered are the age of 

the offenses, the age of the Defendant, the nature of the 

offenses committed. Obviously, anything within that 10-year 

release from custody would be permissible as crimen falsi.

I think in fairness here the burglaries from back in the ‘70s are 

probably too antiquated and would only serve to prejudice the 

jury. What will be admissible by way of crimen falsi as a result 

of the balancing of the interest here is the crimes committed in 

the 2000s, the theft in 2000, burglary in ’04, and conspiracy to 

commit robbery in ’04.

____________________________________________

1 As to this latter crime, Appellant was actually convicted of conspiracy to 

commit burglary. However, Appellant did not object to the incorrect 

recitation to the jury. 
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[APPELLANT]: Understood, Your Honor.

Id. at 75-76. Thus, while Appellant did not stipulate to the convictions, he 

made no contemporaneous objection to the ruling and any objection to the 

admission of this evidence has been waived. Pa.R.A.P. 302(a) (“Issues not 

raised in the lower court are waived and cannot be raised for the first time 

on appeal.”). 

The Anders brief analysis argued that the trial court applied the 

incorrect standard, as the court asked “whether the probative value 

outweighs the prejudicial effect or vice versa.” Id. As noted by counsel, 

that test applies only if the conviction is outside of the ten-year window as 

defined by Rule 609. However, the brief outlines that Appellant was 

released from parole in 2009 for his 2004 convictions. Therefore, pursuant 

to Rule 609(b), the convictions for those crimes were not outside of the tenyear window and were admissible without any balancing whatsoever. We do 

not disagree with this analysis, but the pertinent point with respect to 

frivolity, in our view, is that the issues were not preserved for review. The 

same holds true for the 2000 conviction. 

Waiver also applies to the second claim discussed in the Anders brief, 

i.e., that the prosecutor made improper comments during closing argument. 

Specifically, the prosecutor incorrectly argued that Appellant testified that he 
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did not own a credit card, while Appellant in truth stated that he used an 

Access card for food and had a card that was similar to a debit card. 

The Anders brief analyzes the claim under the prevailing law, and 

determines that there was no prejudice. However, Appellant failed to object 

to the allegedly improper statements, resulting in waiver. See 

Commonwealth v. Stafford, 749 A.2d 489, 496, n.5 (Pa.Super. 2000) 

(holding that any challenge to allegedly improper comments during closing 

arguments was waived due to failure to object). The trial court could not 

sua sponte grant a mistrial, and therefore we agree that this issue was 

frivolous. 

Finally, pursuant to Commonwealth v. Flowers, 113 A.3d 1246 

(Pa.Super. 2015), we have independently examined the record to determine 

if there are any additional, non-frivolous issues. Finding no preserved nonfrivolous issues, we grant counsel’s petition to withdraw and affirm.

The petition to withdraw of Jason G. Pudleiner, Esquire, is granted. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/26/2017