J-S25028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. MICHAEL TODD TORAN, JR. Appellant No. 1295 WDA 2015

Appeal from the Judgment of Sentence July 29, 2015 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000644-2015
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKIN S, J. MEMORANDUM BY MUNDY, J.: FILED APRIL 15, 2016 Appellant, Michael Todd Toran, Jr., appeals from th e July 29, 2015 aggregate judgment of sentence of 5 to 10 years’ in carceration, imposed by the trial court after Appellant was convicted of po ssession of a firearm with manufacturer number altered, firearms not to be car ried without a license, and possession of a firearm prohibited. 1 With this appeal, Appellant’s counsel has filed a petition to withdraw and an Anders 2 brief, stating that the appeal is wholly frivolous. After careful revi ew, we affirm and grant counsel’s petition to withdraw.

____________________________________________ 1 18 Pa.C.S.A. §§ 6110.2(a), 6106(a), and 6105(a), r espectively.

2 Anders v. California , 386 U.S. 738 (1967).J-S25028-16

- 2 -

The record reveals that around 8:30 p.m. on Octobe r 9, 2013, Erie City Police approached Appellant to effectuate an a rrest warrant. N.T., 7/13/15, at 10, 15, 17. Corporal Ryan Onderko test ified that when he approached Appellant, he “immediately took off runn ing.” Id. at 13. Corporal Onderko was pursuing Appellant on foot whe n he noticed “two items” fall from Appellant; “one was a metallic, he avy object, the other one was a camouflage bandana.” Id. at 16. Corporal Onderko said that the metallic object “appeared to be a gun, but at the t ime I was not sure.” Id. Appellant kept running, but was eventually taken in to custody. Id. Thereafter, the police recovered a revolver and the camouflage bandana from where Corporal Onderko saw them fall. Id. Corporal Onderko sent a request to the Pennsylvania State Police to see if Appellant was eligible to have a license to carry a firearm. Id. at 22. The Pennsylvania State Police returned official notification stating that Appella nt did “not have a license to carry.” Id. at 22-23; Commonwealth Exhibit 9. City of Erie Police Detective Dennis Oborski testi fied that on October 9, 2013, around 10:30 p.m., he arrived at the scene of Appellant’s arrest. Id. at 28-29. Detective Oborski took possession of the revolver and “tagged it into evidence.” Id. at 29-30. Detective Oborski testified that police “could not locate a serial number, it was scratched off or what we call obliterated.” Id. at 30.J-S25028-16

- 3 -

Pennsylvania State Police Sergeant Antonio Ferraro testified to being a forensic firearm examiner and was qualified as an e xpert in this field. Id. at 32-34. Sergeant Ferraro was able to restore the or iginal manufacturer’s serial number from the revolver. Id. at 37. In addition, he was able to determine that the “firearm was functional and capa ble of discharging the type of ammunition for which it was manufactured.” Id. at 39. Appellant testified that on the evening of October 9, 2013, he “took off running” because he “didn’t know it was the police that were chasing me. I thought it was the same guys [who had been chasing me] earlier.” Id. at 47-48. Appellant testified that the revolver recov ered by the police “didn’t fall off my person” and he had “no idea” where it c ame from. Id. at 49. Appellant specifically testified, “[n]o, I wasn’t c arrying that gun.” Id. at 57. Appellant was charged with the aforementioned firea rm crimes. 3 Prior to trial, on July 10, 2015, Appellant filed a motio n in limine seeking to sever the charge of persons not to possess a firearm, ass erting, inter alia , that the charge required “evidence that [Appellant] was prev iously convicted of a crime.” Motion in Limine , 7/10/15, at 1. On July 13, 2015, the trial court entered an order severing the persons not to posses s a firearm charge and specified that the charge would be tried by the tri al court.

____________________________________________ 3 Appellant was also charged with flight to avoid ap prehension, 18 Pa.C.S.A. § 5126(a), but after a hung jury and mistrial, the trial court granted the Commonwealth’s motion to nolle prosse the charge on August 7, 2015.J-S25028-16

- 4 -

The case proceeded to trial on July 13, 2015. The jury found Appellant guilty of possession of a firearm with an altered m anufacturer’s number and firearms not to be carried without a license. The trial court found Appellant guilty of persons not to possess a firearm. On Jul y 29, 2015, the trial court sentenced Appellant to 5 to 10 years’ incarceration

. 4 Appellant did not file a post-sentence motion. On August 21, 2015, Appellan t filed his timely notice of appeal. The record is devoid of any filings, by either the trial court or Appellant’s counsel, relative to Pennsylvania Rule of Appellate Procedure 1925. However, on September 1, 2015, the trial cou rt filed a two-sentence memorandum opinion stating, “In light of counsel’s Statement of Intent to File an Anders/McClendon Brief in response to the Court’s Order to file a 1925(b) Statement, the Court has nothing of specifi city to address pursuant to [Appellant’s] appeal. The Court, therefore, sta nds by the record set forth.” Trial Court Opinion, 9/1/15. On September 29, 2015, Counsel sent Appellant a cop y of the Anders brief, along with a letter informing Appellant that she found no non-frivolous issues to support his appeal, and advising him of h is right to retain new counsel to pursue the appeal, or to proceed pro se on appeal and raise any

____________________________________________ 4 Specifically, the trial court sentenced Appellant to concurrent terms in the standard range of 5–10 years’ incarceration for pos session of a firearm with manufacturer number altered, 21⁄2-5 years’ incarcerati on for firearms not to be carried without a license, and 5–10 years’ incar ceration for persons not to possess a firearm.J-S25028-16

- 5 -

points that Appellant deemed worthy of the court’s attention in addition to the points raised by Counsel in the Anders brief. See Commonwealth v. Millisock , 873 A.2d 748 (Pa. Super. 2005). On December 16, 2015, Counsel filed her Anders brief and application to withdraw as counsel with this Court, in which sh e presented the following issue for our review. 5

Whether the trial court abused its discretion in allowing the jury to hear evidence of [Appellant’s] prior convictions relating to the persons not to possess firearms charge as it unreasonably prejudiced the jury[?]

Anders Brief at 4. 6 “When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passi ng on the request to withdraw.” Commonwealth v. Daniels , 999 A.2d 590, 593 (Pa. Super. 2010) (citation omitted). Additionally, an Anders brief shall comply with the requirements set forth by our Supreme Court in Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).

[W]e 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

____________________________________________ 5 Appellant did not file a reply.

6 By letter dated January 13, 2016 and docketed Janu ary 14, 2016, the Commonwealth advised this Court that it would not f ile a responsive brief.J-S25028-16

- 6 - 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. Id. at 361.
Pursuant to Millisock and its progeny, counsel seeking to withdraw on direct appeal must also meet the following obligati ons to his or her client.

Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by couns el in the Anders brief. Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation omitted). “Once couns el has satisfied the above requirements, it is then this Court’s duty to conduct its own review of the trial court’s proceedings and render an indepen dent judgment as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin , 928 A.2d 287, 291 (Pa. Super. 2007) ( en banc ), quoting Commonwealth v. Wright , 846 A.2d 730, 736 (Pa. Super. 2004). Further, “this Court must conduct an independent review of t he record to discern if there are any additional, non-frivolous issues over looked by counsel.”J-S25028-16

- 7 -

Commonwealth v. Flowers , 113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote and citation omitted). In this appeal, we conclude that counsel’s Anders brief complies with the requirements of Santiago . First, counsel has provided a procedural and factual summary of the case with references to the record. Second, counsel advances relevant portions of the record that argua bly support Appellant’s claims on appeal. Third, counsel concluded that sh e had “found no meritorious issues that I can raise on Appellant’s behalf.” Anders Brief at 7. Lastly, counsel has complied with the requirements set forth in Millisock

. See Letter from Counsel to Appellant, dated 9/29/15. As a result, we proceed to conduct an independent review to ascerta in if the appeal is indeed wholly frivolous. Appellant maintains that the trial court abused its discretion “in permitting the jury to hear testimony relating to t he Persons Not to Possess Firearms charge.” Anders Brief at 5. Even though the charge was severed and tried by the trial court, Appellant asserts tha t permitting the testimony “unreasonably prejudiced” the jury. Id. We initially note that Appellant addressed this iss ue in his motion in limine , where he sought severance of the persons not to p ossess a firearm charge and averred, “[i]t is axiomatic that the Per sons Not to Possess charge requires evidence that [Appellant] was previously c onvicted of a crime. The other charges do not require evidence of a prior co nviction.” Motion inJ-S25028-16

- 8 -

Limine , 7/10/15, at 1. The trial court granted Appellant ’s request for

severance. The Crimes Code defines persons not to possess a fi rearm as follows. A person who has been convicted of an offense enumerated in subsection (b), within or without thi s Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection ( c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth. 18 Pa. C.S.A. § 6105. In our review of the transcript from the jury trial , in its entirety, we find no testimony “relating to the persons not to p ossess firearms charge.” Officer Onderko testified that Appellant did not ha ve a license to carry a firearm, which was one of the charges before the ju ry. N.T., 7/13/15, at 22- 23. Officer Onderko also testified that he was loo king for Appellant because there was a warrant for Appellant’s arrest. Id. at 10, 17. Appellant testified that he thought he was being chased not by the poli ce, but by others who were after him because he owed them money for drugs

. Id. at 53-55. And in his closing argument, the Prosecutor stated that Appellant was “wanted by the police” who were “go[ing] to arrest him.” Id. at 65. The above statements imply criminal activity by Appellant, bu t the record is devoid of any reference to a criminal conviction. Based on the foregoing, we agree with counsel that Appellant’s evidentiary issue lacks merit. Furthermore, we hav e reviewed the certifiedJ-S25028-16

- 9 -

record consistent with Flowers and have discovered no additional arguably meritorious issues. Accordingly, we grant counsel’ s petition to withdraw and affirm the July 29, 2015 judgment of sentence. Judgment of sentence affirmed. Petition to withdr aw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/15/2016J-S25028-16

- 10 -