Com. v. Singer, J.

J-S07015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                         Appellee

                    v.

JUSTIN SINGER,

                         Appellant                     No. 2216 EDA 2017


        Appeal from the Judgment of Sentence Entered June 1, 2017
              In the Court of Common Pleas of Wayne County
           Criminal Division at No(s): CP-64-CR-0000415-2016


BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 30, 2018

      Appellant, Justin Singer, appeals from the judgment of sentence of 21

to 60 months’ incarceration, imposed after a jury convicted him of flight to

avoid apprehension, trial or punishment, 18 Pa.C.S. § 5126(a). On appeal,

Appellant seeks to challenge the trial court’s admission of a video recording

that, according to Appellant, was not properly authenticated. Additionally,

Appellant’s counsel, Steven E. Burlein, Esq., seeks to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After

careful review, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

      In Attorney Burlein’s Anders brief, he sets forth the facts and

procedural history of Appellant’s case as follows:
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            On or about July 26, 2016, at roughly 7:30 p.m., [Officer
     Keith Rynearson,] a member of the Honesdale Borough Police
     [Department,] was on patrol on Willow Avenue in the Borough of
     Honesdale. He observed a vehicle pass him in the opposite lane
     with an expired inspection sticker. [Officer] Rynearson then
     followed the vehicle to the parking lot of Cordaro’s Restaurant,
     where the vehicle went to the rear of the parking lot and parked.
     A male exited the vehicle, [Officer] Rynearson attempted to talk
     to him, and the male fled the scene. [Officer] Rynearson chased
     the male but was unable to apprehend him. The male was later
     identified as [] Appellant, … and [he] was further identified as
     being wanted for absconding from PA State Parole. [Officer]
     Rynearson thereafter viewed video surveillance from Cordaro’s
     Restaurant parking lot to confirm the identity of [] Appellant. []
     Appellant was subsequently arrested and charged with the crime
     of Flight to Avoid Apprehension, Trial or Punishment (F3).

           [] Appellant was convicted of the Flight charge [following] a
     [j]ury [t]rial on May 10, 2017. He was sentenced June 1, 2017
     and received 21 … to 60 months[’ incarceration] at a State
     Correctional Institution.    At the request of [] Appellant,
     undersigned counsel filed this [a]ppeal.

Anders Brief at 5.

     After Appellant filed a notice of appeal, the trial court ordered him to file

a Pa.R.A.P. 1925(b) statement.        Appellant timely complied, raising the

following issue in his Rule 1925(b) statement:

     Whether the trial [c]ourt erred as a matter of law in overruling the
     objection of [Appellant], and allowing the security video footage
     to be shown to the jury, without proper authentication or
     identification.

Pa.R.A.P. 1925(b) Statement, 7/25/17, at 1 (single page).         The trial court

issued a Rule 1925(a) opinion on September 8, 2017.

     On December 9, 2017, Attorney Burlein filed with this Court a petition

to withdraw from representing Appellant. That same day, counsel also filed

an Anders brief, discussing the above-stated issue and concluding that it is


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frivolous. Attorney Burlein also concludes that Appellant has no other, non-

frivolous issues he could pursue herein.

      As this Court has explained, we

      must first pass upon counsel’s petition to withdraw before
      reviewing the merits of the underlying issues presented by [the
      appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
      Super. 2007) (en banc).

      Prior to withdrawing as counsel on a direct appeal under Anders,
      counsel must file a brief that meets the requirements established
      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.

      Santiago, 978 A.2d at 361. 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 counsel in the Anders brief.”
      Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
      2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct an independent review of the

record to discern if there are any additional, non-frivolous issues overlooked


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by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted).

      In this case, Attorney Burlein’s Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could arguably

support Appellant’s claim, and he sets forth his conclusion that Appellant’s

appeal is frivolous.     He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent legal authority.    Attorney Burlein also states in his petition to

withdraw that he has supplied Appellant with a copy of his Anders brief.

Additionally, he attached to his petition to withdraw a letter directed to

Appellant in which he informs Appellant of the rights enumerated in Nischan.

Accordingly, counsel has complied with the technical requirements for

withdrawal.   We will now independently review the record to determine if

Appellant’s issue is frivolous, and to ascertain if there are any other, non-

frivolous issues he could pursue on appeal.

      Appellant contends that the trial court erred by admitting, over defense

counsel’s objection, video footage taken from security cameras at Cordaro’s

Restaurant. Preliminarily, we recognize that,

      [t]he standard of review employed when faced with a challenge to
      the trial court’s decision as to whether or not to admit evidence is
      well settled. Questions concerning the admissibility of evidence
      lie within the sound discretion of the trial court, and a reviewing
      court will not reverse the trial court’s decision absent a clear abuse
      of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa.

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      Super. 2005). Abuse of discretion is not merely an error of
      judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation

omitted).

      At trial, Appellant’s counsel objected to the admission of the at-issue

video on the ground that it was not properly authenticated. See N.T. Trial,

5/10/17, at 21.      In response, the Commonwealth argued that Officer

Rynearson’s testimony demonstrated that the video was “a truthful and

accurate depiction of what had happened” and, thus, that testimony was

sufficient to authenticate the video. Id. The trial court agreed, and overruled

Appellant’s objection.

      We ascertain no abuse of discretion in the trial court’s decision. Our

Supreme Court has explained:

      As in the admission of any other evidence, a trial court may admit
      demonstrative evidence whose relevance outweighs any potential
      prejudicial effect. Commonwealth v. Reid, 571 Pa. 1, 811 A.2d
      530, 552 (2002), cert. denied, 540 U.S. 850, 124 S.Ct. 131, 157
      L.Ed.2d 92 (2003). The offering party must authenticate such
      evidence. “The requirement of authentication or identification as
      a condition precedent to admissibility is satisfied by evidence
      sufficient to support a finding that the matter in question is what
      its proponent claims.” Pa.R.E. 901(a). Demonstrative evidence
      may be authenticated by testimony from a witness who has
      knowledge “that a matter is what it is claimed to be.” Pa.R.E.
      901(b)(1). Demonstrative evidence such as photographs, motion
      pictures, diagrams, and models have long been permitted to be
      entered into evidence provided that the demonstrative evidence
      fairly and accurately represents that which it purports to depict.
      See Nyce v. Muffley, 384 Pa. 107, 119 A.2d 530, 532 (1956).


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Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).

      In concluding that here, the Officer Rynearson’s testimony sufficiently

authenticated the at-issue video evidence, the trial court reasoned:

             Officer Rynearson offered a detailed account of how he
      followed [Appellant] by vehicle to the parking lot of Cordaro’s
      Restaurant and then pursued [Appellant] by foot towards the front
      of the [r]estaurant. The location of Cordaro’s Restaurant in
      relation to the crime scene was thoroughly identified by Officer
      Rynearson. Officer Rynearson further testified how he obtained
      [the] video footage of the entrance, [exit], and surrounding areas
      of Cordaro’s Restaurant on the date and time of the crime.
      According to Officer Rynearson, the video footage was a truthful
      and accurate depiction of what occurred within view of those
      cameras. Thus, the video footage was authenticated by the
      testimony of a witness with knowledge, in accordance with Pa.R.E.
      901(b)(1).

Trial Court Opinion (TCO), 9/8/17, at 2.

      Our review of the record confirms that the trial court accurately

summarizes Officer Rynearson’s testimony regarding the video surveillance

footage, and we agree with the court that his testimony properly authenticated

the video evidence. Therefore, the trial court did not abuse its discretion in

admitting that evidence over defense counsel’s objection.

      Accordingly, we agree with Attorney Burlein that the issue Appellant

seeks to raise herein is frivolous. Additionally, our independent examination

of the record reveals no other, non-frivolous issues that Appellant could raise

on appeal. Therefore, we affirm his judgment of sentence and grant counsel’s

petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/18




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