Commonwealth v. Perkins

COMMONWEALTH OF PENNSYLVANIA Appellee v. ISAAC DUGAN PERKINS Appellant

J-S31043-15

No. 1970 MDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 8, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence of October 23, 2014

In the Court of Common Pleas of Adams County

Criminal Division at No: CP-01-CR-0000076-2014

BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:

Isaac Dugan Perkins appeals his October 23, 2014 judgment of sentence. Perkins' counsel also seeks to withdraw from his representation pursuant to Anders/Santiago.¹ We grant the petition to withdraw, and we affirm the judgment of sentence.

On December 14, 2013, Perkins was arrested and charged with persons not to possess a firearm, 18 Pa.C.S.A. § 6105(a)(1); criminal trespass, 18 Pa.C.S.A. § 3503; unlawful devices and methods (semiautomatic rifle or pistol), 34 Pa.C.S.A. § 2308(a)(2); unlawful acts concerning licenses, 34 Pa.C.S.A. § 2711(a)(1); protective material required, 34 Pa.C.S.A. § 2524; attempted unlawful killing or taking of big game, 34Pa.C.S.A. § 2321(a)(2); attempted unlawful taking or possession of game or wildlife, 34 Pa.C.S.A. § 2307(a); and trespass on private property while hunting, 34 Pa.C.S.A. § 2314.

Perkins did not appear for his preliminary hearing and a bench warrant issued on January 29, 2014. Perkins, a Florida resident, was picked up on the warrant in Florida and appeared before the court in Pennsylvania on May 5, 2014.

Perkins was tried by a jury on August 7, 2014. At trial, the following evidence was taken. Corporal Christian Fow has twenty years' experience with the Pennsylvania State Police. Notes of Testimony ("N.T."), 8/7/2014, at 24. On December 14, 2013, on his way to work and while on duty, Corporal Fow decided to check on an abandoned property that had been burglarized recently because he saw a truck parked in the driveway. Id. at 26-27. Corporal Fow was also concerned because he previously had caught people poaching on that property. Id. at 28. When he got to the truck, Corporal Fow saw two sets of footprints in the snow leading away from the house. Corporal Fow followed the footprints and saw that they led in two different directions. Id. at 32.

Corporal Fow followed one set of footprints. In a field, Corporal Fow found Perkins, standing under a tree. Id. at 34-35. At that time, there were approximately six inches of snow on the ground and only one set of footprints nearby. Perkins told Corporal Fow that he was looking around the property. Id. at 35. Corporal Fow asked if Perkins was hunting, and Perkinssaid yes. Corporal Fow then asked whether Perkins had a weapon. Perkins said yes, and started to reach for a gun. Corporal Fow told him not to touch the weapon, identified himself as a police officer, and retrieved Perkins' gun. Id. at 37. The gun was leaning against the tree and within arm's reach of Perkins. Id. at 38. Corporal Fow never saw the gun in Perkins' hands, nor did he see Perkins touch the gun. Id. at 57. The gun was a Ruger 10/22 semi-automatic, and was loaded with ammunition in a ten-round magazine. Id. at 39, 41. Perkins could not produce a hunting license. Id. at 42.

Corporal Fow then walked Perkins back to the truck. The property's caretaker arrived, and the men waited for another state trooper. At that point, Corporal Fow saw Perkins' brother, Isaiah Perkins, come out of the woods. Id. at 43. Isaiah approached Corporal Fow, and when Corporal Fow asked if Isaiah had a firearm, Isaiah went back into the woods to retrieve an SAR-1 semiautomatic rifle. Id. at 47.

Trooper Bill Mitchell transported Perkins and Isaiah to the station, while Corporal Fow called Wildlife Conservation Officer Darren David for assistance given the potential violations of the Game and Wildlife Code.² Id. at 51. Corporal Fow testified that the officers did not attempt to obtain fingerprints from Perkins' gun because the gun had been wet from the snowand because Corporal Fow and other people handled the gun while taking it into evidence. Id. at 50-51.

Isaiah testified that he and Perkins were sightseeing in the area and decided to stop at the abandoned property because it had a historical plaque out front. Id. at 62-63. The brothers noticed footprints and followed them into a field. Id. at 63. Isaiah saw some deer and went back to his truck to retrieve his Ruger rifle. When he returned to his brother, the deer were gone, and the men sat under a group of trees for about twenty minutes. Id. at 64. Isaiah then had to relieve himself, so he left the Ruger rifle by a tree and went back to the truck to get some napkins. As he got to the truck, he saw some more deer, got another rifle from the truck, and followed those deer across a creek. Isaiah testified that Perkins never held the Ruger rifle. Id. at 66. Isaiah left his SAR-1 rifle in the woods when he returned to the truck, and he retrieved it when Corporal Fow asked about a gun. Id. at 72-73. Isaiah denied that he told Corporal Fow that he gave the Ruger rifle to Perkins to use for hunting. Id. at 74.

Perkins testified that he and Isaiah stopped at the property to look around, whereupon Isaiah saw some deer and got his gun. Id. at 80-81. When Isaiah left, Perkins walked around before Corporal Fow arrived. Id. at 82. Perkins denied ever telling Corporal Fow that he had a gun. Id. at 83-84. Perkins also denied ever handling the gun. Id. at 84. Perkins admitted that he knew he was not permitted to possess a gun. Id. at 87. After he testified, the court read a stipulation that Perkins had been convicted of priorcrimina falsi, to wit: a burglary in Florida in December 2011; a second burglary, possession of burglary tools, and theft in Florida in September 2009; and a third burglary in Florida in March 2009. The court instructed that these crimes could be used only in considering Perkins' credibility. Id. at 92. The parties also stipulated that Perkins was a person prohibited by law from possessing, using, or controlling a firearm. Id. at 52.

Officer David testified on rebuttal that, when questioned, Isaiah admitted that he passed the Ruger rifle to Perkins and that Perkins received it. Id. at 96. Isaiah said he gave the rifle to Perkins to use while hunting. Id. at 97. Also on rebuttal, Corporal Fow confirmed that Isaiah told him that Isaiah and Perkins were hunting and that Isaiah said he gave Perkins the rifle for hunting. Id. at 107, 109.

On August 7, 2014, following trial, the jury found Perkins guilty of persons not to possess a firearm. The trial court ruled on the summary offenses and found Perkins guilty of criminal trespass, unlawful acts concerning licenses, unlawful devices and methods, protective material required, and trespass on private property while hunting. The trial court found Perkins not guilty of the remaining charges.

On October 23, 2014, Perkins was sentenced to four to eight years' incarceration for the persons not to possess a firearm conviction. Given the offense gravity score and Perkins' prior record score, Perkins' sentence was in the mitigated range. Perkins was ordered to pay fines for the summary offenses totaling $750.00.

On November 3, 2014, Perkins filed a post-sentence motion raising a weight of the evidence claim, among others. On November 6, 2014, the trial court denied the motion.

On November 19, 2014, Perkins filed a notice of appeal. The same day, the trial court ordered Perkins to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On December 2, 2014, Perkins' counsel filed a statement in lieu of a concise statement, in which he indicated his intent to file an Anders/Santiago brief with this Court. Instead of an opinion, the trial court filed a statement that no issues had been raised and that the trial court had nothing to address.

Because Perkins' counsel proceeds pursuant to Anders/Santiago, this Court first must pass upon counsel's petition to withdraw before reviewing the merits of the issues presented by Perkins. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief must provide the following information:

(1) a summary of the procedural history and facts, with citations to the record;

(2) reference to anything in the record that counsel believes arguably supports the appeal;

(3) counsel's conclusion that the appeal is frivolous; and

(4) 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. Santiago, 978 A.2d 349, 361 (Pa. 2009).

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 rights 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); see Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). Finally, to facilitate our review of counsel's compliance, counsel must attach to his petition to withdraw the letter that he sent to Perkins. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

Instantly, counsel has included a statement of the factual and procedural history of the case. Anders Brief at 7-8. Counsel identifies the issues Perkins wished to raise on appeal and refers to the support in the record both for Perkins' issues and for counsel's conclusion that the issues are frivolous. Id. at 8, 10-15. Therefore, the brief meets all of the technical requirements of Santiago. Counsel also has appended to his brief a letter to Perkins that was sent with...