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

v.

JAMES BARROW

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1024 EDA 2020 Appeal from the Judgment of Sentence Entered October 25, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR

- 0004038

- 2016

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES BARROW

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1076 EDA 2020 Appeal from the Judgment of Sentence Entered October 25, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- CR

- 0004036

- 2016

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES BARROW

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1077 EDA 2020J

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- Appeal from the Judgment of Sentence Entered October 25, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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- 2016

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J. *
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 06, 2021 Appellant, James Barrow, appeals from the judgments of sentence
entered in the above

- captioned matters. Because the issue in each case is identical, the crimes charged in each separate bill of information were tried together in Appellant’ s consolidated no njury trial, and Appellant has filed a single brief with our permission, we address the appeals in a single
Memorandum. We note that Appellant’s appointed 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). Appellant has not filed a response to counsel’s petition to withdraw. Following
our review, w e grant counsel’s petition to withdraw and affirm the judgments
of sentence.
The trial court summ arized the procedural history of the cases , as
follows: On March 16, 2016, [Appellant] was arrested and charged with three separate cases of ro bbery, conspiracy, possessing th e instrument of a crime and violations of the Uniform Firearms Act.

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* Retired Senior Judge assigned to the Superior Court.J

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- Appellant was bound over f or trial on al l charges following an April 25 th preliminary hearing. [Appellant] waived his righ t to a jury [trial] and trial began on October 19, 2019. On October 25, 2019, [Appellant] was convicted of three counts of robbery and conspir acy [ 1 ] but acquitted of all other charges. Appellant was su bsequently s entenced to six to twenty years’ incarceration on each charge, running concurrently with each other. Post

Sentencing Motions were filed on November 4, 2019 and denied on March 6, 2020 . Appellant filed a timely notice of appeal as well as statement of matters complained of on appeal.
* * * On February 1, 2016, [Appellant] phoned the Wilmington, Delaware office of the F.B.I. seeking to spe[a]k to someone about some robberies that t ook place in Philadelphia. Agent Scott Duffey returned [Appellant’s] call and obtained some preliminary information about a robbery that took place in February of 2015. Two days later, Agent Duffey and Philadelphia Police Detective Dan Grassi met [Appell ant] at the location [A]ppellant had provided them. Upon their arrival, [Appellant] walked over to the police vehicle an d willingly went with the agents for an interview. After [Appellant] was given his Miranda [ 2 ] warnings, he discussed his involvement i n three Philadelphia robberies. (N.T. 10

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- 28). At trial, witnesses from each one of the robberies testified and surveillance video of each robbery was introduced. ( N.T. 10

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- 50). Both F.B.I. Agent Duffey, and P hiladelphia Police Detective Robert Daly testified that they did not have any concerns that [Appellant] had any mental he alth issues, could not un derstand the questions, or was under the influence of drugs or alco hol during either of their inte rviews with him. (N.T. 10

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- 2019, pp. 26

- 27; N.T. 10

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- 104). Trial Court Opinion, 6/8/20, at 1

– 3 (footnote omitted).

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1 18 Pa.C.S. §§ 3701(a)(1)(ii) and 903, respectively.

2 Miranda v. Arizona , 384 U.S. 436 (1966).J

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- Before we address any question raised on appeal, we must resolve appellate counsel’s request to withdraw. Commonwealth v. Cartrette , 83 A.3d 1030 (Pa. Super. 2013) ( en banc ). There are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on appeal. The procedural mandates are that 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 private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.
Id. at 1032 (citation omitted). In addition, in Santiago our Supreme Court stated that an Anders 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. Santiago , 978 A.2d at 361. Counsel filed the required petition averring that after a c onscientious review of the record, he found the appeal to be wholly frivolous. MotionJ

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- Seeking Permission to Withdraw as Counsel , 7/6/20, at ¶ 3. He filed an
Anders brief discussing the issue that Appellant wanted to pursue and concluded further that no other issues could reasonably support the appeal.
Anders Brief at 13, 15

. He provided Appellant with copies of his peti tion and
brief and advised Appellant that he could retain new counsel or proceed pro

se and raise additi onal arguments. Letter to Appellant, 7/6 /20. Thus, counsel complied with the technical Anders requirements. Also, c ounsel’s brief is sufficiently compliant with Santiago

. The brief sets forth the history of this case and refers to the notes of testimon y , pertinent case authority, and sets forth an issue of arguable merit. Anders
Brief at 4

– 18 . Further, the brief advances counsel’s conclusion that the app eal
is frivolous and the reason for counsel’s conclusion. Id. at 15

– 17

. Accordingly, we proceed t o examine the issue counsel identified in the Anders brief, and then we conduct “a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Commonwealth v. Yorgey , 188 A.3d 1190, 1195 (Pa. Super. 2018) ( en banc ). Counsel identified the following issue in his Anders brief: 1. The Honorable Court committed an abuse of discretion by denying Appellant’s motion for a new trial on weight of the evidence grounds.
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- First, we must determine if Appellant’s challenge to the weight of the evidence was properly preserved. A challenge to the weight of the evidence
must first be raised at the trial level “ (1) orally, on the record, at any time before sentencing; (2) by wri tten motion at any time before sentencing; or (3) in a post

- sentence motion. ” Commonwealth v. Akrie , 159 A.3d 982, 989 (Pa. Super. 2017). Appellan t properly preserved his weight

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evidence claim by raising the issue in a timely post

- sentence motion on November 4, 2019. We have held that a motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence “concedes that there is
sufficient evidence to sustain the verdict.” Commonwealth v. Rayner , 153 A.3d 1049, 1054 (Pa. Super. 2016) (quoting Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000)). Our Supreme Court has described the standard applied to a weight

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- evidence claim as follows:

The decision to grant or deny a motion for a new tr ial based upon a claim that the verdict is against the weight of the evidence is within the sound discretion of the trial court. Thus, “the function of an appellate court on appeal is to review the trial court’s exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence.” An appellate court may not overturn the trial court’s decision unless the trial court “palpably abused its discretion in ruling on the weight claim.” F urther, in reviewing a challenge to the weight of the evidence, a verdict will be overturned only if it is “so contrary to the evidence as to shock one’s sense of justice.”J

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- Commonwealth v. Williams , 176 A.3d 298, 312 (Pa. Super. 2017) (quoting
Commonwealt

h v. Cash , 137 A.3d 1262, 1270 (Pa. 2016) (internal citations omitted)). A trial court’s determination that a verdict was not against the weight of the evidence is “[o]ne of the least assailable reasons” for denying a
new trial. Commonwealth v. Colon – Pla za , 136 A.3d 521, 529 (Pa. Super. 2016) (quoting Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013)). A verdict is against the weight of the evidence where “certain facts are so clearly of greater weight that to ignore them or to give them equal weight w ith all the facts is to deny justice.” Commonwealth v. Lyons , 833 A.2d 245, 258 (Pa. Super. 2003) (quoting Widmer , 744 A.2d at 751

– 752). “[W]e do not reach the underlying question of whether the verdict was, in fact, against the weight
of the evidence . . . . Instead, this Court determines whether the trial court abused its discretion in reaching whatever decision it made on the motion.”
Williams , 176 A.3d at 312. Appellant suggests the verdicts shock the conscience: because the testimony of the Common wealth’s eyewitnesses contradicted the contents of [A]ppellant’s statements to authorities, [A]ppellant’s statements themselves contradicted each other, the evidence demonstrated that [A]ppellant did not act voluntarily when he gave his statements to autho rities, and the statements were unreliable and should not have been admitted in evidence or considered by the trial court when deliberating on a verdict.
Anders Brief at 15. As pointed out by the Commonwealth, Appellant’s potential challenge to the weigh t of the evidence is asserted by “diminishingJ

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- the record by attacking the admissibility of [Appellant’s] statements” to police. Commonwealth’s Brief at 10. Thus, it appears Appellant is suggesting the verdict was shocking because Appellant’s Miranda waiv er was allegedly invalid. In rejecting Appellant’s weight

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- evidence challenge, the trial court addressed both the weight of the evidence and the voluntariness of Appellant’s statements. We rely upon the trial court’s explanation, which provided as follows:

F.B.I. Agent Scott Duffey w as the first witness presented by the Commonwealth, who testi fied that on February 1, 2016, [A] ppellant phoned the Wilmington office of the F.B.I wanting to speak with someone about some robberies. (N.T. 10

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- 15). Agent Duffey returned [Appellant’s] call and ob tained some preliminary information about the robbery of Elzina Bar in Philadelphia in Feb rua ry of 2015. (N.T. 10

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- 2019, pp. 13

- 15). On February 3, 201 6, Agent Duffey met with [A]ppell ant and De tective Dan Grassi of the Philadelphia Police Department and [they] transported him to the Delaware State Police Criminal Investigation Squad where a mirandi zed video

- recorded statemen t was taken from [Appellant]

. (N.T. 10

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- 21). Appellant confessed to the robb ery of Elzina Bar, Vincent ’ s Pizza Shop and Jim ’ s Steaks, all in Philadelphia in 2015. (N.T. 10

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- 28). Leon Singleton testified that on February 2, 2015, at approximately 11:00 p.m. he was a c ustomer in the Elzina Bar at 57 th and Master Streets in Philadelphia when the bar was robbed. Mr. Singleton recalled that two ma sked men, one with a pistol, entered the bar, shouting at everyone to get down on the ground. One of the crooks jumped over the bar stealing the proceed s from t he cash register while the oth er took the valuables from the patrons on the floor. (N.T. 10

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- 15). The incident was captured on the bar ’ s surveillance system and presented in court as Commonwealth Exhibit 5. (N.T. 10

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Alec Philador testified that he was working at Vincent ’ s Pizza at 6452 Lansdowne Avenue in Ph iladelphia in the early morn ing hours of March 7, 2015, when two masked individuals, one with a handgun, entered the stor e and robbed the establishment. At least eight people were present at the time. (N.T. 10

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- 29). Once again, surveillance video, inside and outside the business, captured the e ntire incident and was presented in court as Commonwealth Exh ibi t 9. (N.T. 10

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- 36). Rodney Holmes came to co urt to testify that about 1:00 a.m. on March 7, 2015, he was working at Jim ’ s Steaks at 431 North 62 nd Street in Philadelphia when two men entered the store, bot h brandishing handguns, shoutin g fo r the employees to get on the floor. Mr. Holmes was ordered to open the register from wh ich one of the robbers took all the money and ran out of the store. (N.T. 10

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- 48). Again, the incident was recorded on video and presented in court as Commonwealth Exhibit 13 (N.T. 10

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- 50). Philadelphia Police Detective Robert Daly interviewed [Appellant] on February 4, 201 6, with Detective Conway record ing [A] ppellant ’ s mirandized confession. Unbeknownst to the detectives the intervie w was being videotaped as well and was presented in court as Commonwealth Exhibit 15. (N.T. 10

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- 2019, pp. 76

- 89). The detective testified that there did not appear to be any mental health issues, that [Appellant] seemed to understand the detectives ’ qu estions, w as not under the influence of d rugs or alcohol, did not ask for a lawyer and no promises or guarantees were made to him. (N .T. 10

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- 2019, pp. 80

- 104). Carol Armstrong, a neuro psychologist testifying on behalf of [Appellant], stated that [Appe llant] su ffered from an intellectual dis ability and neuropsychiatric illness that would have precluded him from voluntarily surrender i n g his Miranda rights, despite measuring [A] ppellant ’ s IQ at 75. ( N.T. 10

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- 26). Dr. Armstrong did not look at the videotape of [Appellant ’s ] confession when making the evaluation of whether [Appellant] had voluntarily waived his Miranda rights. Additionally, when question ed about the fact that it was [Appellant] who initiated the co ntact with law enforcement and therefore was not coerced into his confession, Dr. Armstrong claimed that she did not know w hyJ

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- he had initiated the contact, or his motivations for doing so. (N.T. 10

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- 43).
In rebuttal [,] the prosecution presented the expert testimony of Kirk Heilbrun, a psychologist with a forensic specializati on. Dr. Heilbrun, in addition to interviewing [Appellant] and studying the video of [Appellant ’s ] waiver of his rights and subsequent confession, administered two versions of the Brief Symptom Inventory tests, the Minnesota Multiphasic Personality Inventory as well as the Miran da Rights Comprehension Instrument. (N.T. 10

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- 41). This court found Dr[.] Heilb run to be substantially more credible than Dr. Armstrong and his c onclusions , to a reasonable de gree of scientific certainty much more persuasive. This court applied the appropriate st andards when reviewing [Appellant’s] claim that the verdict was against the weigh t of the evidence. Having reviewed the entire record, including a thorough reading of the trial tr anscripts and admitted exhibits, this court concludes that the ver dict was not so contrary to the ev idence as to shock one ’ s sense of justice, nor was it so tenuous, va gue and uncertain that it shock s the conscience of the court. To the contrary, the evidence in t his case was compelling and sub stantial, and strongly supported the verdict. Accordingly, this claim of [Appellant] is without merit.
* * * [Appellant] claims his stat ements should not have been admitted int o evidence as the testimony presented was inadequate to show that the statement was voluntary. (Statement of Matters Comp lained of on Appeal, p. 1; Post

Sentencing motions, p. 4)

. To the contrary, the prosecution presented an abundance of e vidence that t he statements were voluntary, not only the testimony of the detectives who took the statements, but the videotapes of the statements by Agent Duffey as well as Detective Daly were presented so th e factfinder could observe [A] ppellant as he confessed to the crimes. It was crystal clear that [Appellant] knowingly, intelligently and voluntarily made his statements to the a uthorities.J

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If [Appellant] is relying upon the findings of Dr. Carol Armstrong ’ s conclusion that [Appellant] was incapable of voluntar ily waiving his Miranda rights, this court made a determination that Dr. Armstrong was less pers uasive than Dr. Heilbrun, who concluded that [Appellant ’s ] statements were voluntary. Dr. Armstrong administered an I.Q. test, recording [Appellant ’s ] I.Q. as 75, and averred that such a low I.Q. made him incapable of understanding what rights he was giving up. Dr. Armstrong d id not review the videotapes of [Appellant ’s ] interviews with either Agent Duffey or Detectiv e Daly, and did not conduct a “Grisso” test, [ 3 ] which assesses the understanding and appreciation o f the Miranda rights [,] although [Dr.] Heilbrun did. Having heard the testimony of each expert, this court found Dr. Heilbrun ’ s testimony and opinion much more compelling, and comprehensive.
The law is clear that it is for the trier of fact to determine the weight of the evidence and the credibility of witnesses. The factfinder may believe all, part or none of the evidence. An appellate court may not re

- weigh th e evidence nor substitute its judgment [ f] or that of the factfinder. Commonwealth v. Devries , 112 A .3d 663, 667 (Pa. Super. 20 15) (citing Commonwealth v. Thur , 906 A.2d 552, 569 (Pa. Super.200 6)). Further, the fact that a defendant has a low I.Q. does not in and of itself render his confessio n involuntary. Commonwealth v. Glover , 488 Pa. 459, 466, 412 A.2d 855, 858

- 859 (1980); Commonwealth v. Crosby , 464 Pa . 337, 344

- 345, 346 A.2d 768, 772 (1975). As for Dr. Armstrong ’ s assertion that she did not know what compelled [Appellant] to initiate contact with l aw enforcement or his motivations to confess, “ neither the Pennsylvania nor the United States Constitution [s] protect a defendant from statements which originate entirely from internal compulsion resulting from a mental disease.” Commonwealth v. Bracey , 501 Pa. 356, 369, 461 A.2d 775, 782 (1983). This court had the opportunity to view the witnesses and to scrutinize their testimony. The record clearly disc loses ample basis for this court ’ s

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3 The Grisso test refers to Thomas Grisso’ s Instruments for Applied Assessment of Understanding of Miranda Rights. Commonwealth v. Winter , 159 A.3d 1017 , 835 MDA 2016 (Pa. Super. filed December 29, 2016) (unpublished memorandum at *2).J

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- determinations and as such[, this cour t] found [Appellant ’s ] waiver of h is Miranda rights to be knowing, intelligent and voluntary and as su ch, [A] ppellant’s claim is witho ut basis. Trial Court Opinion, 6/8/20, at 5

– 10 (footnote omitted). We reiterate that our review is not a reassessment of the weight of the evidence; it is for an abuse of discretion. Cash , 137 A.3d at 1270; Commonwealth v. Ferguson , 107 A.3d 206, 213 (Pa. Super. 2015) . For the reasons set forth above, we discern no abus e of discretion in the trial

court ’s denial of a new trial based on the weight of the evidence. Finally, we have independently reviewed the record in order to determine if counsel’s assessment about the frivolous nature of the present appeal is correct. Yorgey , 188 A.3d at 1195. After review of the issues raised by counsel and our independent review of the record, we conclude that an appeal in this matter is frivolous. Accordingly, we grant counsel’s petition s to withdraw and affirm the judgment s of sen tence.
Petition s to withdraw of John Belli, Esquire, granted. Judgment s of
sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 1/6/2021