The opinion
J-S10003-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES ALFONSO MILLER, JR. :
:
Appellant : No. 816 WDA 2023
Appeal from the Judgment of Sentence Entered December 29, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003438-2019
BEFORE: OLSON, J., KING, J., and LANE, J.
MEMORANDUM BY OLSON, J.: FILED: May 7, 2024
Appellant, James Alfonso Miller, Jr., appeals from the judgment of
sentence entered on December 29, 2021, following his jury trial convictions
for: arson – danger of death or bodily injury; arson endangering property –
reckless endangerment of inhabited building; recklessly endangering another
person; institutional vandalism; criminal mischief – damage to property; and,
dangerous burning.1 Counsel for Appellant has filed an Anders2 brief and
petition to withdraw as counsel. We affirm the judgment of sentence and
grant the petition to withdraw.
____________________________________________
1 18 Pa.C.S.A. §§ 3301(a)(1)(i), 3301(c)(2), 2705, 3307(a)(3), 3304(a)(1),
3301(d.1), respectively.
2 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
J-S10003-24
We briefly summarize the facts and procedural history of this case, as
gleaned from the certified record, as follows. On January 16, 2020, the
Commonwealth filed a criminal information against Appellant, a prison inmate
at the time, alleging that:
[On] September 8, 2019, […Appellant] did intentionally start a fire
and/or cause an explosion […] and did thereby recklessly place
another person in danger of death or bodily injury, including but
not limited to a firefighter, police officer or other person actively
engaged in fighting the fire […] intentionally start[ed] within his
[prison] cell, occurring at [State Correctional Institute (SCI)]
Albion [and] thereby [Appellant] did commit the crime of arson
and related offenses.
Criminal Information, 1/16/2020, at *1 (superfluous capitalization omitted). 3
A jury found Appellant guilty of the aforementioned charges following a
three-day jury trial commencing on September 16, 2021. On December 29,
2021, the trial court sentenced Appellant to an aggregate term of 72 months
to 144 months of imprisonment, followed by one year of probation. This
appeal resulted.4
____________________________________________
3 The Commonwealth also alleged that Appellant “did throw punches and/or
kicked his legs as [correction officers] attempted to escort him out of his cell[,
Appellant] attempted to launch himself of[f] a balcony causing bodily injury
to [a correction officer]” and that Appellant “spit saliva while being restrained.”
Criminal Information, 1/16/2020, at *1-2 (superfluous capitalization omitted).
Appellant was charged with additional counts of aggravated assault by a
prisoner, but the jury was hung on these charges, and those offenses were
eventually nolle prossed.
4 On December 20, 2022, Appellant filed a pro se petition pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. By order
entered on December 22, 2022, the trial court reinstated Appellant’s
(Footnote Continued Next Page)
-2-
J-S10003-24
On December 28, 2023, counsel for Appellant filed a petition with this
Court seeking to withdraw from representation of Appellant. Petition to
Withdraw, 12/28/2023. Preliminarily, we must address counsel’s petition to
withdraw. Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010)
(citation omitted) (“When presented with an Anders brief, this Court may not
review the merits of the underlying issues without first passing on the request
to withdraw.”). In order to withdraw pursuant to Anders, “counsel must file
a brief that meets the requirements established by our Supreme Court in
[Santiago, supra].” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.
Super. 2014) (parallel citation omitted). Specifically, counsel's Anders brief
must comply with the following requisites:
(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
____________________________________________
post-sentence and direct appeal rights nunc pro tunc and appointed counsel
to represent Appellant. Following a court-ordered extension for the
transcription of notes of testimony, Appellant filed a counseled post-sentence
motion on June 26, 2023. By order entered on June 27, 2023, the trial court
denied relief. Counsel for Appellant filed a timely notice of appeal on July 12,
2023. On July 20, 2023, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Counsel for Appellant complied timely on July 31, 2023. On September 12,
2023, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a), relying
entirely upon the reasoning as set forth in its June 27, 2023 order denying
Appellant post-sentence relief.
-3-
J-S10003-24
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, [and] statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. (citation omitted).
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, “[c]ounsel also must provide a copy of the Anders
brief to his [or her] client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa. Super. 2014) (internal quotation marks and citation omitted). The brief
must be accompanied by a letter that advises the client of the option 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.” Id. “Once
counsel 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
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en
banc) (citation and internal quotation marks omitted).
Instantly, counsel for Appellant has satisfied the technical and
procedural requirements of Anders and Santiago. In her Anders brief,
counsel identified the pertinent factual and procedural history and made
citation to the record. Counsel raises two issues challenging Appellant’s
judgment of sentence that could arguably support an appeal, but ultimately,
counsel concludes that the appeal is wholly frivolous. See Anders Brief at
-4-
J-S10003-24
4-7. Counsel for Appellant attached a letter to her Anders brief advising
Appellant of his options in compliance with Millisock and Orellana, supra.
Moreover, both the Anders brief and the petition to withdraw contain proof
of service to Appellant. Appellant has not filed a response to counsel’s letter,
the Anders brief, or the petition to withdraw. Accordingly, we proceed to
conduct an independent review of the record to determine whether the appeal
is wholly frivolous.
In the Anders brief, counsel raises the following issues for our review:
I. The verdict in this case should be set aside, as the jury was
not a jury of his peers, as he is black and all of the jury
members were white.
II. The venue or venire for [Appellant’s] trial should have been
based on the fact that details of his case were in the Erie
Times News and other media news sources on October 29,
2019. [Appellant] argues that, based on the information in
the article, jurors could have already made up their minds
about the case – [Appellant] also alleges that the
[Commonwealth] made a comment during jury selection
that the case had not been in the media, so jurors were not
asked about whether any media coverage would have led
them to a conclusion of guilt or innocence prior to trial.
Anders Brief at 2 (numerals added).
Both of these issues implicate jury selection, and we are guided by the
following standard of review:
The scope of voir dire rests in the sound discretion of the trial
court, whose decision will not be reversed on appeal absent
palpable error. The purpose of voir dire is to ensure the
empaneling of a competent, fair, impartial, and unprejudiced jury.
The scope of voir dire should therefore be limited to questions that
attempt to disclose a potential juror's lack of qualification or fixed
opinion regarding the defendant's guilt or innocence. A
-5-
J-S10003-24
prospective juror's personal views are of no moment absent a
showing that these opinions are so deeply embedded as to render
that person incapable of accepting and applying the law as given
by the court.
Commonwealth v. Scott, 212 A.3d 1094, 1103 (Pa. Super. 2019) (citation
omitted).
“[A] prosecutor's challenge to potential jurors solely on the basis of race
violates the Equal Protection Clause of the United States Constitution”
pursuant to the Supreme Court of the United States decision in Batson v.
Kentucky, 476 U.S. 79 (1986). Id. at 1105. “A Batson claim presents
mixed questions of law and fact. Therefore, our standard of review is whether
the trial court's legal conclusions are correct and whether its factual findings
are clearly erroneous.” Id. (citation omitted). When a defendant makes a
Batson challenge during jury selection:
First, the defendant must make a prima facie showing that
the circumstances give rise to an inference that the
prosecutor struck one or more prospective jurors on account
of race; second, if the prima facie showing is made, the
burden shifts to the prosecutor to articulate a race-neutral
explanation for striking the juror(s) at issue; and third, the
trial court must then make the ultimate determination of
whether the defense has carried its burden of proving
purposeful discrimination.
The trial court should consider the totality of circumstances when
determining whether the prosecutor acted with discriminatory
intent or engaged in purposeful discrimination. This Court must
give great deference to a trial court's determination that
peremptory challenges were free of discriminatory intent, and we
will not overturn the determination unless it was clearly
erroneous.
Id. at 1105–1106 (internal citations and quotations omitted).
-6-
J-S10003-24
Moreover,
[t]he defendant does not satisfy Batson's first step of prima facie
evidence merely by showing that the prosecutor used a number
of strikes against venirepersons of one race. Nor is it sufficient to
merely point out the fact that the prosecutor rejected a higher
percentage of African–American potential jurors than non-African-
American potential jurors. Instead, the defendant must preserve
a full and complete record of the asserted Batson violation, as it
would otherwise be impossible to conduct meaningful appellate
review of the motivations of prosecutors in individual cases
without such a record.
Within the prima facie case wherein a defendant must establish
on the record the circumstances demonstrating purposeful
discrimination, Pennsylvania law also requires that a defendant
must make a record specifically identifying (1) the race or gender
of all venirepersons in the jury pools, (2) the race or gender of all
venirepersons remaining after challenges for cause, (3) the race
or gender of those removed by the prosecutor, and (4) the race
or gender of the jurors who served and the race or gender of jurors
acceptable to the Commonwealth who were stricken by the
defense.
In other words, for a Batson claim to be in a posture for the trial
court to make a proper ruling, the following must happen. First,
a defendant must make out a prima facie case on the record to
the trial court. The prima facie case requires more than just
noting on the record the race of excluded jurors and the numerical
composition of the prosecution's strikes. The prima facie case
must be detailed enough for the trial court eventually to assess
whether there has been purposeful discrimination to establish a
Batson violation. The prima facie case must identify the
circumstances a defendant believes establishes purposeful
discrimination, including those record items required under
Pennsylvania law. Second, once a defendant qualifies the record
with a sufficient prima facie case, the prosecution is then obligated
to provide race-neutral explanations for the strikes being
questioned. Finally, once the record is complete with a
defendant's prima facie case and the prosecution's race neutral
explanations, the trial court has a proper foundation to proceed to
the third step, in which it assesses the totality of the
circumstances surrounding juror selection and determines
-7-
J-S10003-24
whether the defendant has made out a case of purposeful
discrimination.
Commonwealth v. Murray, 248 A.3d 557, 568 (Pa. Super. 2021) (internal
quotations and citations omitted).
Additionally, with regard to pre-trial publicity, our Supreme Court has
stated that “[n]ormally, one who claims that he has been denied a fair trial
because of prejudicial pre-trial publicity must show actual prejudice in the
empaneling of the jury.” Commonwealth v. Casper, 392 A.2d 287, 291 (Pa.
1978) (citation omitted). “In certain cases there can be pretrial publicity so
sustained, so pervasive, so inflammatory, and so inculpatory as to demand a
change of venue without putting the defendant to any burden of establishing
a nexus between the publicity and actual jury prejudice, because the
circumstances make it apparent that there is a substantial likelihood that a
fair trial cannot be had.” Id. (internal quotations and citations omitted). The
“presumption of prejudice pursuant to this exception requires the presence of
exceptional circumstances [and] generalizations in this area are difficult
because each case must turn on its special facts.” Id. (citations omitted). “It
is clear that the mere existence of pre-trial publicity does not warrant a
presumption of prejudice [and] a possibility that prospective jurors will have
formed an opinion based on news accounts will not suffice.” Id. at 291-292
(citation omitted). Courts “instead look to more discrete factors, [for
example], whether the pre-trial publicity was, on the one hand, factual and
objective, or, on the other hand, consisted of sensational, inflammatory and
slanted articles demanding conviction.” Id. at 292 (citations omitted).
-8-
J-S10003-24
In addition, we adhere to the following legal precepts:
The fundamental tool for appellate review is the official record of
the events that occurred in the trial court. To ensure that an
appellate court has the necessary records, the Pennsylvania Rules
of Appellate Procedure provide for the transmission of a certified
record from the trial court to the appellate court. The law of
Pennsylvania is well settled that matters which are not of record
cannot be considered on appeal. Thus, an appellate court is
limited to considering only the materials in the certified record
when resolving an issue. In this regard, our law is the same in
both the civil and criminal context because, under the
Pennsylvania Rules of Appellate Procedure, any document which
is not part of the officially certified record is deemed
non-existent—a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the
reproduced record. The emphasis on the certified record is
necessary because, unless the trial court certifies a document as
part of the official record, the appellate judiciary has no way of
knowing whether that piece of evidence was duly presented to the
trial court or whether it was produced for the first time on appeal
and improperly inserted into the reproduced record. Simply put, if
a document is not in the certified record, the Superior Court may
not consider it.
This Court cannot meaningfully review claims raised on appeal
unless we are provided with a full and complete certified record.
This requirement is not a mere technicality nor is this a question
of whether we are empowered to complain sua sponte of lacunae
in the record. In the absence of an adequate certified record,
there is no support for an appellant's arguments and, thus, there
is no basis on which relief could be granted.
The certified record consists of the original papers and exhibits
filed in the lower court, the transcript of proceedings, if any, and
a certified copy of the docket entries prepared by the clerk of the
lower court. Our law is unequivocal that the responsibility rests
upon the appellant to ensure that the record certified on appeal is
complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty. To facilitate
an appellant's ability to comply with this requirement, our
Supreme Court adopted the following procedural rule effective as
of June 1, 2004:
-9-
J-S10003-24
The clerk of the lower court shall, at the time of the
transmittal of the record to the appellate court, mail a copy
of the list of record documents to all counsel of record, or if
unrepresented by counsel, to the parties at the address they
have provided to the clerk. The clerk shall note on the
docket the giving of such notice.
Pa.R.A.P.1931(d). As the explanatory comment to Rule 1931
indicates, if counsel (or a party) discovers that anything material
has been omitted from the certified record, the omission can be
corrected pursuant to the provisions of Rule of Appellate
Procedure 1926. Under Rule 1926, an appellate court may direct
that an omission or misstatement shall be corrected through the
filing of a supplemental certified record. However, this does not
alter the fact that the ultimate responsibility of ensuring that the
transmitted record is complete rests squarely upon the appellant
and not upon the appellate courts.
With regard to missing transcripts, the Rules of Appellate
Procedure require an appellant to order and pay for any transcript
necessary to permit resolution of the issues raised on appeal. If
a cross-appeal has been taken, the cross-appellant shares the
duty to order and pay for the necessary transcripts.
Pa.R.A.P.1911(b). When the appellant or cross-appellant fails to
conform to the requirements of Rule 1911, any claims that cannot
be resolved in the absence of the necessary transcript or
transcripts must be deemed waived for the purpose of appellate
review. It is not proper for either the Pennsylvania Supreme Court
or the Superior Court to order transcripts nor is it the responsibility
of the appellate courts to obtain the necessary transcripts.
In the absence of specific indicators that a relevant document
exists but was inadvertently omitted from the certified record, it
is not incumbent upon this Court to expend time, effort and
manpower scouting around judicial chambers or the various
prothonotaries' offices of the courts of common pleas for the
purpose of unearthing transcripts, exhibits, letters, writs or PCRA
petitions that well may have been presented to the trial court but
never were formally introduced and made part of the certified
record. If, however, a copy of a document has been placed into
the reproduced record, or if notes of testimony are cited
specifically by the parties or are listed in the record inventory
certified to this Court, then we have reason to believe that such
evidence exists. In this type of situation, we might well make an
informal inquiry to see if there was an error in transmitting the
- 10 -
J-S10003-24
certified record to this Court. We might also formally remand
the matter to the trial court to ascertain whether notes of
testimony or other documentation can be located and transmitted.
If a remand is necessary, it is appropriate to direct the trial court
to determine why the necessary documentation was omitted from
the certified record. An appellant should not be denied appellate
review if the failure to transmit the entire record was caused by
an extraordinary breakdown in the judicial process. However, if
the appellant caused a delay or other problems in transmitting the
certified record, then he or she is not entitled to relief and the
judgment of the court below should be affirmed.
Commonwealth v. Preston, 904 A.2d 1, 6-8 (Pa. Super. 2006) (en banc)
(internal quotations and case citations omitted).
Here, upon review of the certified record, there is no record of the
composition of the venire or the manner and method by which it was
assembled. Moreover, there is no transcript of the questioning during jury
voir dire. Thus, our appellate review of jury selection has been hampered and
Appellant failed to establish a prima facie case on the record to the trial court.
There is no notation on the official docket that a transcript of voir dire was
ordered and transcribed. In fact, on September 15, 2021, the day before trial,
Appellant signed a waiver of the presence of the judge and a court reporter
during the examination and challenge of prospective jurors. On September
20, 2021, the trial court filed that waiver and made it part of the certified
record. As such, without information concerning the composition and
assembly of the venire and without notes of testimony from voir dire, we
cannot meaningfully review Appellant’s claims pertaining to jury selection.
There is no record evidence regarding selection of the venire or the eventual
composition of the jury and Appellant failed to make a prima facie showing
- 11 -
J-S10003-24
that the Commonwealth struck prospective jurors on account of race.
Moreover, there was no evidence that Appellant asked potential jurors about
pre-trial publicity. Regardless, the mere existence of pre-trial publicity does
not warrant a presumption of prejudice and the mere possibility of formed
opinions based on news accounts will not suffice.5 Accordingly, upon our
____________________________________________
5 Counsel for Appellant has included a newspaper article from the Erie
Times-News dated October 29, 2019, regarding this case. See Anders Brief
at 6 n.2. This article is not contained in the certified record, however, and we
should not consider it. The article in question states as follows:
ALBION—An inmate at the State Correctional Institution at Albion
who told investigators that he started a fire in his cell because of
not being able to eat his meals was charged by the Pennsylvania
State Police with arson and other offenses in an early September
incident at the state prison.
James A. Miller Jr., 26, was arraigned Monday afternoon by
Springfield Township District Judge Chris MacKendrick on charges
including felony counts of arson, aggravated assault, risking
catastrophe and aggravated harassment by prisoner in an incident
that happened on the early afternoon of September 8.
State police charge that Miller started a fire in his cell,
endangering other inmates and prison staff, and fought with
correction officers who responded to the incident, according to
information in Miller’s criminal complaint.
Investigators wrote in the affidavit of probable cause that a
corrections officer discovered the fire in Miller’s cell and found
Miller sitting on the floor of his cell with a bed sheet tied around
his neck. Miller also attempted to jump from a second-story
balcony outside of his cell when officers were escorting him out of
it, and he spit on the corrections officers, state police charge in
the affidavit.
(Footnote Continued Next Page)
- 12 -
J-S10003-24
review of the certified record and for all of the foregoing reasons, we agree
with counsel’s assessment that Appellant's appeal is wholly frivolous.
Moreover, our independent review of the record reveals no additional,
non-frivolous claims. Therefore, we grant counsel's petition to withdraw and
affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
____________________________________________
Two corrections officers sought medical attention following the
incident. The fire caused $512[.00] in damages, according to the
affidavit.
Miller is serving a state prison sentence out of Delaware County.
Erie Times-News, 10/29/2019 (unpaginated). This pre-trial article is a
factual and objective recitation and merely states the allegations taken
directly from the criminal complaint and affidavit of probable cause. It was
not sensational, inflammatory, slanted, or demanding conviction. Counsel for
Appellant has not pointed to any additional pre-trial publicity in this matter
and our independent research has not revealed any. There is nothing in the
certified record to suggest that pre-trial publicity was so sustained and so
pervasive as to require a new trial. In fact, there is no evidence that jurors
were even aware of the October 29, 2019 article. Finally, we note that the
trial court instructed the jurors before deliberation that they were “the sole
judges of the facts” and that they must “consider the evidence, to find the
facts, and to apply the law to the facts as [they] find them in order to decide
whether [Appellant] has been proven guilty beyond a reasonable doubt.” N.T.,
9/17/2021, at 52. Jurors were further instructed that they should “apply
common sense and draw upon [] everyday practical knowledge of life” and
could not “use a cell[ular telephone] a computer, or any other electronic
device with communication capabilities during [] deliberation.” Id. at 62. “A
jury is presumed to follow instructions the trial court provides[.]”
Commonwealth v. Johnson, 289 A.3d 959, 1009 (Pa. 2023). There is
simply no record evidence that the jury was prejudiced in this matter by
pre-trial publicity.
- 13 -
J-S10003-24
DATE: 05/07/2024
- 14 -