J-S56005-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY SUTTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 293 EDA 2019

Appeal from the PCRA Order Entered December 19, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0001025-2015

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 31, 2019

Anthony Sutton appeals from the December 19, 2018 order denying his 

first petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9546. On appeal, Sutton asserts ineffective 

assistance of both trial and direct appeal counsel. Specifically, Sutton contends 

that trial and/or direct appeal counsel should have objected to the way the 

trial court adjudicated his guilt. Moreover, Sutton claims trial and direct appeal 

counsel should have preserved a challenge to the sufficiency of the evidence.

As we find neither of Sutton’s issues to be meritorious, we affirm.

The factual background and procedural history of this case, as relevant, 

are as follows. In 2014, Sutton fired several shots from a firearm, which hit a 

nearby individual. At trial, the Commonwealth charged Sutton with twentynine offenses, twenty-eight of which proceeded to a jury trial and one was 

held for a bench trial. 
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The jury found Sutton guilty of carrying a firearm without a license, see 

18 Pa.C.S.A. § 6106(a)(1), and carrying a firearm on the streets of 

Philadelphia, see 18 Pa.C.S.A. § 6108, but found him not guilty as to all other 

counts. The sole charged offense that did not go to a jury, possession of a 

firearm by a prohibited person, see 18 Pa.C.S.A. § 6105(a)(1), was 

adjudicated thereafter by the trial court. The trial court found Sutton guilty of 

this crime.

After his trials, the trial court sentenced Sutton to three consecutive 

sentences, amounting to an aggregate term of eleven to twenty-two years of 

imprisonment. Trial counsel filed a post-sentence motion, but concurrently 

sought leave to withdraw as counsel. In disposing of these two matters, the 

trial court granted trial counsel’s request to withdraw and denied Sutton’s 

post-sentence motion. 

Appellate counsel was then appointed. Sutton filed a timely appeal to 

this Court, and we granted appellate counsel’s motion to withdraw pursuant 

to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and its federal 

predecessor, Anders v. California, 386 U.S. 738 (1967), and affirmed 

Sutton’s judgment of sentence. See Commonwealth v. Sutton, 2017 WL 

499410 (Pa. Super. 2017). Our Supreme Court denied Sutton’s pro se petition 

for allowance of appeal, and several months later, the United States Supreme 

Court denied Sutton’s petition for certiorari on January 22, 2018.

On April 20, 2018, Sutton filed a timely PCRA petition, which was 

dismissed after a full briefing and subsequent hearing. Sutton then filed a 
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timely appeal to this Court.

On appeal, Sutton presents two issues for our review:

1) Did the PCRA court err in dismissing the PCRA claim that trial 

counsel was ineffective for failing to object to [Sutton] being 

convicted of possessing a firearm by a prohibited person (18 

Pa.C.S.[A.] § 6105) without a trial or pleas hearing, and was 

direct appeal counsel ineffective for failing to challenge the 

constitutionality of the procedure used to convict [Sutton]?

2) Did the PCRA court err in dismissing the PCRA claim that direct 

appeal counsel was ineffective for failing to raise the claim that 

the evidence was insufficient to sustain the conviction for 

possessing a firearm by a prohibited person (18 Pa.C.S.[A.] § 

6105) because no evidence was presented that [Sutton] had 

the type of criminal record that brought him within the class of 

persons prohibited from possessing a firearm?

Appellant’s Brief, at 3.

“On appeal from the denial of PCRA relief, our standard of review is 

whether the findings of the PCRA court are supported by the record and free 

of legal error.” Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007) 

(citations omitted).

Sutton contends that “there is no evidence that [he] knowingly, 

intelligently[,] and voluntarily waived his right to a trial on the charge of 

violating [18 Pa.C.S.A.] § 6105.” Appellant’s Brief, at 10. Sutton asserts that 

“the trial court unilaterally pronounced [him] guilty without affording him a 

trial or securing a plea of guilt.” Id. He argues that trial counsel was ineffective 

for implicitly consenting to the trial court’s actions when the court adjudicated 

Sutton’s guilt without any kind of trial or guilty plea. See id., at 11.

He believes the trial court’s pronouncement of guilt was no more than a 
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guess or an assumption as to what would have happened if he would have 

been properly convicted and that he was prejudiced by counsel’s actions. See 

id., at 16.

In addition to the suggestion that Sutton was found guilty through a 

flawed process, Sutton continues by stating that even if the trial court properly 

found Sutton guilty, he believes that the evidence was insufficient to convict 

him of the possession of a firearm by a prohibited person offense as “there 

was no evidence to show when [Sutton] had been convicted of one of those 

predicate offenses [set forth in 18 Pa.C.S.A. § 6105(b)] such that the 

Commonwealth was unable to prove beyond a reasonable doubt that at the 

time of his arrest ... [Sutton] was no longer within the [offense’s] 60-day 

[transfer] grace period.” Id., at 18 (emphasis in original).

Under a typical claim alleging ineffective assistance of counsel, Sutton 

would have to prove that: “(1) [his] underlying claim has arguable merit; (2) 

counsel had no reasonable basis for his or her action or inaction; and (3) the 

petitioner suffered prejudice as a result of counsel’s action or inaction.” 

Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (citations omitted).

Our prior decisions make clear that “[c]ounsel is presumed effective, and the 

petitioner bears the burden of proving otherwise.” Id. (citation omitted). 

Moreover, “[a] failure to satisfy any prong of the test for ineffectiveness will 

require rejection of the claim.” Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 

2010) (citation omitted).

We need not address all three prongs, as we conclude Sutton has not 
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established the necessary prejudice to succeed. In situations such as this, 

where Sutton 

seeks to collaterally attack his waiver of a jury trial, on grounds 

that it was caused by the ineffective assistance of his trial counsel, 

to prove prejudice, he must demonstrate a reasonable probability 

that but for counsel’s constitutionally deficient service, the 

outcome of the waiver proceeding would have been different, i.e., 

that he would not have waived his right to a jury trial.

Commonwealth v. Mallory, 941 A.2d 686, 704 (Pa. 2008).

We point out that other than generalized and largely irrelevant citations 

to what would apparently constitute prejudice, see Appellant’s Brief, at 15 

(discussing, for example, the prejudicial denial of the right to self 

representation or to one’s right to select an attorney), Sutton does not cite to 

any directly applicable authority. Further, Sutton concedes that trial counsel’s 

“strategy in seeking severance pre-trial was unquestionably the right call[.]” 

Id., at 14.

While best practices would dictate that the trial court obtain a written 

waiver to Sutton’s right to a jury trial in addition to a clear on-the-record 

colloquy evincing the same, we see no basis to conclude that there is a 

reasonable probability that Sutton would not have waived his right to a jury 

trial:

The [c]ourt: Sir, did you understand what she just explained to 

you in terms of that charge?

[Sutton]: Yes, ma’am.
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The [c]ourt: [The charges have] been bifurcated so that the jury 

does not hear that you had a prior conviction and the nature of 

that conviction. If the jury finds you guilty of possession of a 

firearm in the other sections, it’s been stated to this [c]ourt that 

–

[Sutton’s trial counsel]: That I would simply concede the 6105.

The [c]ourt: That that point would be conceded and this [c]ourt 

would formally find you guilty separately. Okay? Is that correct, 

sir?

[Sutton]: Yes, ma’am.

The [c]ourt: Okay. Do you have any difficulties about that? Do 

you understand that?

[Sutton]: I understand.

N.T., 10/6/15, at 122-23. The following day, after the jury found Sutton guilty 

of two other firearm-related offenses:

[The Commonwealth]: ... But we still have the matter of 6105, 

Your Honor.

[Sutton’s trial counsel]: We bifurcated.

The [c]ourt: Oh, right. And it’s been agreed that if [the jury] 

found [Sutton] guilty of the Violation of the Uniform Firearm’s Act, 

there’s no disagreement that this [c]ourt would find him guilty on 

the VUFA.

[Sutton’s trial counsel]: Or that we would plead guilty. He’s 

already in custody.

The [c]ourt: Whichever way you wish to do it. It was bifurcated. 

I can say what the verdict is if that’s easier for you.

[Sutton’s trial counsel]: I mean, we’ll plead guilty, Your Honor. 

Whatever is fastest with less paperwork.

The [c]ourt: Okay. Since it was agreed that it would be 

bifurcated and up to this [c]ourt to make that decision, I find you 
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guilty of Violation of the Uniform Firearm’s Act under Section 

6105. 

N.T., 10/7/15, at 20-21.

Although we note that these proceedings lacked the formality normally 

associated with a defendant’s waiver of his right to a jury trial, the record 

reflects the fact that: 1) Sutton was fully apprised of his rights by trial counsel; 

2) Sutton understood the nature of what he was giving up by not seeking a 

jury trial, he agreed to this disposition, and his comprehension and acceptance 

of the conditional nature of the offense being adjudicated by a nonjury trial is 

clear; and 3) the bifurcation of Sutton’s offenses, where the jury would not 

hear about his prior criminal activity was reasonable under the circumstances, 

see Appellant’s Brief, at 14. Additionally, while brief, Sutton received a 

nonjury trial, which, in terms of evidence, was comprised of fact finding 

performed by the jury empaneled to adjudicate his other charged offenses in 

conjunction with Sutton’s own admissions.

“Waivers [to fundamental rights] can occur by conduct or by 

implication.” See Mallory, 941 A.2d at 697. We find that Sutton’s waiver of 

to his right to a jury trial is more evident than one established through 

implication. The Section 6105 charge was bifurcated and explicitly agreed to

by Sutton for a calculated purpose: so that the jury would not hear about his 

prior conviction. Further, as noted, Sutton concedes that this strategy was 

“unquestionably the right call.” Appellant’s Brief, at 14.
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Sutton has failed to demonstrate that, absent counsel’s failure to object,

there is a reasonable probability he would not have waived his right to a jury 

trial. See Mallory, 941 A.2d at 704. He has offered no rational basis for us to 

conclude that he would have desired a jury trial if the question was again 

raised. Moreover, there is no evidence that Sutton desired to alter the 

trajectory of the conditional Section 6105 charge after the jury returned its 

verdict.

Sutton’s brief is replete with statements to the effect that he never 

received a trial of any kind nor did he participate in a guilty plea. While the 

trial court should have explicitly followed the Rules of Criminal Procedure, see 

Pa.R.Crim.P. 620, we see no reason to conclude that Sutton was denied his 

right to a trial. The record reflects that Sutton received both a jury and a 

nonjury trial. Based on the combination of the jury’s findings as to his other 

offenses and Sutton’s admission to the facts underpinning a Section 6105 

charge, there was nothing more necessary for the court to find Sutton guilty 

of that specific offense.

Sutton next argues that there is insufficient evidence of record to sustain 

his conviction under section 6105. He therefore contends trial and appellate 

counsel were ineffective for not preserving this claim.

Section 6105 identifies that a person convicted of an enumerated 

offense “shall not possess, use, control, sell, transfer or manufacture or obtain 

a license to possess, use, control, sell, transfer or manufacture a firearm in” 
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Pennsylvania. 18 Pa.C.S.A. § 6105(a)(1). That statute does provide a limited 

sixty-day exception by which individuals may sell or transfer their firearms to 

another eligible person. See id., at § 6105(a)(2)(i).

Both of the crimes the jury found Sutton guilty of required possession 

of a firearm. See 18 Pa.C.S.A. §§ 6106, 6108. The Commonwealth submitted 

evidence on Sutton’s firearm possession, see, e.g., N.T., 10/6/15, at 29, and 

the jury found the Commonwealth’s evidence to be credible in its verdict, see 

id., 10/7/15, at 17-18. Therefore, the jury’s finding established the requisite 

possession of a firearm. In addition, Sutton conceded that he was a “prohibited 

person” within the meaning of Section 6105 and did not, either at trial or now, 

raise any exception to this designation. See N.T., 10/6/15, at 123. 

“Parties are free to bind themselves by stipulation on all matters not 

affecting the jurisdiction and prerogatives of the court, and the court has the 

power to enforce those stipulations.” Wayda v. Wayda, 576 A.2d 1060, 1067 

(Pa. Super. 1990) (citations omitted). “A stipulation is a declaration that the 

fact agreed upon is proven, and it must be enforced according to its terms.” 

Commonwealth v. Belak, 825 A.2d 1252, 1256 n.10 (Pa. 2003) (citation 

omitted). Sutton was free to stipulate that his prior conviction disqualified him 

from possessing a firearm under Section 6105. See Commonwealth v. 

Jemison, 98 A.3d 1254, 1261 (Pa. 2014).

As the two constituent parts comprising the Section 6105 were met, by 

way of unqualified stipulation to the predicate offense as well as a jury finding 
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Sutton was in possession of a firearm, the evidence was sufficient for the trial 

court to convict Sutton under this section. Accordingly, Sutton’s sufficiency of 

the evidence claim lacks arguable merit, see Roney, 79 A.3d at 604, and 

counsel were not ineffective for failing to preserve this claim for review on 

direct appeal.

In finding neither of Sutton’s claims to be meritorious, we conclude that 

the PCRA court did not err in dismissing his petition.

Order affirmed.

Judge Nichols joins in the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/19