J-S75005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MOISES MEDINA

                            Appellant                   No. 2419 EDA 2013


             Appeal from the Judgment of Sentence August 2, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004290-2012


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                          FILED JANUARY 30, 2015

        Appellant, Moises Medina, appeals from the August 2, 2013 aggregate

judgment of sentence of ten to 20 years’ incarceration, imposed after a jury

convicted him of aggravated assault and criminal conspiracy.1 In addition,

Appellant’s counsel has filed with this Court a petition to withdraw, together

with an Anders2 brief, averring the appeal is frivolous. After careful review,

we grant counsel’s petition to withdraw and affirm the judgment of

sentence.




____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a) and 903(a), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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      The certified record reveals the following relevant facts and procedural

history. On June 1, 2011, Appellant and Emmanuel Flores got in a dispute

with Francis Aponte after Aponte asked Appellant and Flores to move from

the front steps of his residence.   N.T., 6/5/13, at 58-59.     Appellant and

Flores eventually left, only to return to the neighborhood 20 minutes later in

a gray Mazda.    Id. at 69.   Appellant and Flores then got out of the car,

approached Aponte and his two-year-old daughter on foot, and shot at

them. Id. at 83-84. Aponte retreated with his daughter inside the garage

of the car wash Aponte owned, which was across the street from his

residence. Id. at 84.   After the gunfire ceased, Aponte called his mother,

Mayra Guzman, and she arrived approximately ten to 20 minutes later at the

car wash. Id. at 91-92. Officers from the Philadelphia police department

responded and Aponte told them about the shooting, pointing out the

Mazda, which was parked, unoccupied, on the block. Id. at 94.

      Shortly after the police left, Appellant and Flores returned with three

other men. Id. at 98. The group of five men went to the Mazda and then

approached Aponte, his daughter, and Guzman, who were at the car wash,

and three men in the group opened fire.      Id. at 104, 107.   Aponte again

took his daughter inside the garage. Id. at 109. Guzman covered her face

with her hands and crouched down. N.T., 6/7/13, at 65-67.

      Guzman, through a translator, provided the police with a written

statement identifying Appellant, Flores, and a third man as the gunmen who


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shot at her and Aponte. N.T., 6/10/13, at 21. She also identified Appellant

and Flores in photographs as the men who had attacked her and Aponte.

Id. at 25-27.       Later, Aponte supplied a written statement to detectives

naming Appellant and Flores as the shooters.        Id. at 67-68.   Aponte also

picked Appellant out of an eight-person photo array.            Id. at 70-71.

Detectives obtained a search warrant and searched the gray Mazda, finding

an identification card with Appellant’s name, date of birth, and address. Id.

at 51-52.

       Appellant was arrested on December 7, 2011. On June 5, 2013, he

proceeded to a six-day jury trial on the charges of aggravated assault of

Aponte, aggravated assault of Guzman, and criminal conspiracy.         On June

12, 2013, a jury found Appellant guilty of the aforementioned charges with

respect to Guzman, but found Appellant not guilty of the charge of

aggravated assault against Aponte. N.T., 6/12/13, at 54-55. On August 2,

2013, the trial court sentenced Appellant to an aggregate term of ten to 20

years’ incarceration.       Appellant did not file post-sentence motions.   On

August 12, 2013, Appellant filed a timely notice of appeal. Thereafter, on

August 14, 2013, the trial court appointed new counsel to represent

Appellant in this appeal.3 On May 20, 2014, Appellant’s counsel filed, with

____________________________________________


3
  On September 4, 2013, the trial court directed Appellant to file a Rule
1925(b) statement within 21 days of the trial transcripts becoming available.
On December 9, the trial court sent a letter to this Court explaining that it
(Footnote Continued Next Page)


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this Court, a motion to withdraw as counsel together with an Anders brief.

In response, Appellant filed a pro se Reply to Counsel’s No Merit Brief on

July 10, 2014.

      On appeal, counsel raises the following issues on Appellant’s behalf.

             A.        Were the verdicts against the weight of the
                       evidence because the testimony presented by
                       the     Commonwealth        was    perjurious,
                       contradictory,   inconsistent,  and    wholly
                       unworthy of belief so much so that the verdict
                       shocks the conscience?

             B.        [Whether] the evidence was insufficient to
                       support    Appellant’s  aggravated   assault
                       conviction because the Commonwealth failed
                       to present sufficient evidence to establish
                       beyond a reasonable doubt that Appellant or
                       any accomplice or co-conspirator acted with
                       the specific intent to cause serious bodily
                       injury to Ms. Guzman[?]

Anders Brief at 13, 19.4

      “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.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, we review counsel’s Anders brief for
                       _______________________
(Footnote Continued)

had not filed its 1925(a) opinion because the transcripts were not available.
On April 23, 2014, Appellant’s court-appointed appellate attorney filed a
1925(b) statement indicating that the transcripts only recently became
available. The trial judge did not submit a 1925(a) opinion, as he was no
longer on the bench at the time Appellant filed his 1925(b) statement.
4
 For purposes of our discussion, we address the issues raised by Appellant’s
counsel in reverse order.



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compliance 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
              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 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 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “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.




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Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

      Instantly, we are satisfied that counsel has complied with the technical

requirements of Anders and Santiago.            First, counsel has provided a

procedural and factual summary of the case with references to the record.

Anders Brief at 4-10.      Second, counsel advances relevant portions of the

record that arguably support Appellant’s claims on appeal.           Id. at 13-23.

Third, counsel concluded Appellant’s appeal is frivolous as “his review of the

record failed to reveal anything that would support an issue having some

chance of success on appeal.” Id. at 12. Lastly, counsel has complied with

the requirements set forth in Millisock, supra.            As a result, we proceed

with our independent review of the record and the issues presented on

Appellant’s behalf to ascertain if the appeal is wholly frivolous. Additionally,

we will assess the claims raised by Appellant in his pro se reply to counsel’s

Anders brief.

      Instantly, Appellant’s counsel next raises the issue of whether the

evidence was sufficient to sustain the conviction for aggravated assault.

Specifically, Appellant asserts that “the evidence failed to show that

[Guzman] was injured and that [A]ppellant[,] either directly or vicariously,

intended to harm her.”      Anders Brief at 19-20.         “A claim impugning the

sufficiency   of   the   evidence   presents   us   with    a   question   of   law.”

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)


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(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).      Our standard

and scope of review is as follows.

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying the above
            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we
            note that the facts and circumstances established by
            the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a
            defendant’s guilt may be resolved by the fact-finder
            unless the evidence is so weak and inconclusive that
            as a matter of law no probability of fact may be
            drawn from the combined circumstances.            The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.
            Moreover, in applying the above test, the entire
            record must be evaluated and all evidence actually
            received must be considered. Finally, the [finder] of
            fact while passing upon the credibility of witnesses
            and the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).

            However, the inferences must flow from facts and
            circumstances proven in the record, and must be of
            such volume and quality as to overcome the
            presumption of innocence and satisfy the jury of an
            accused’s guilt beyond a reasonable doubt. The trier
            of fact cannot base a conviction on conjecture and
            speculation and a verdict which is premised on
            suspicion will fail even under the limited scrutiny of
            appellate review.



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Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 102 (Pa. 2014).

      A person commits aggravated assault if he “attempts to cause serious

bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the

value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Further, “serious bodily

injury” is defined as “[b]odily injury which creates a substantial risk of death

or which causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.”         Id. § 2301.

For aggravated assault, an “attempt” is properly found when an “accused,

with the required specific intent, acts in a manner which constitutes a

substantial step toward perpetrating a serious bodily injury upon another.”

Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005), appeal

denied, 879 A.2d 781 (Pa. 2005).       Intent is usually proven by inference

through circumstantial evidence.     Commonwealth v. Fortune, 68 A.3d

980, 984 (Pa. Super. 2013) (en banc), appeal denied, 78 A.3d 1089 (Pa.

2013).   This Court has held the firing of a gun at a victim is the type of

conduct that is likely to result in serious bodily injury and evidence of such

conduct is sufficient to prove the intent required for aggravated assault.

Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super. 2001),

appeal denied, 803 A.2d 733 (Pa. 2002), citing, Commonwealth v.




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Wanamaker,      444   A.2d   1176,    1178   (Pa.    Super.   1982);   see     also

Commonwealth v. Robinson, 817 A.2d 1153, 1160 (Pa. Super. 2003).

      Viewing   the   evidence   in    the   light   most     favorable   to    the

Commonwealth, as the verdict-winner, we conclude the evidence supports

Appellant’s conviction for aggravated assault.        Specifically, the evidence

established that Appellant discharged a firearm at Guzman.         We note that

there is no question that Appellant’s actions did not inflict actual, serious

bodily injury on Guzman. Therefore, Appellant’s conviction for aggravated

assault hinges on whether he attempted to inflict serious bodily injury on

Guzman. For the following reasons, we conclude there is sufficient evidence

Appellant attempted to do so.

      The evidence adduced at trial established that on the morning of the

day in question, Appellant was involved in an altercation with Aponte that

ended with Appellant firing a gun at Aponte.           N.T., 6/5/13, at 83-84.

Guzman went to Aponte’s house in response to this incident. Id. at 91-92.

Later in the day, Appellant returned with a group of four other men. Id. at

98.   The group went to a gray Mazda, containing an identification card

belonging to Appellant, retrieved firearms, and opened fire at Guzman. Id.

at 98, 104, 107. Appellant was one of the shooters. N.T., 6/10/13, at 21.

Guzman stated that she felt the shots coming towards her and they were

very close to her. N.T., 6/6/13, at 87; N.T., 6/7/13, at 69. These facts are

sufficient to enable the jury to conclude that Appellant intended to inflict


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serious bodily injury on Guzman and attempted to do so.               Therefore,

Appellant’s challenge to the sufficiency of the evidence to sustain his

conviction for aggravated assault is frivolous. See Galindes, supra.

      Appellant next argues the verdict was against the weight of the

evidence because the testimony of the witnesses contained internal

inconsistencies and, more specifically, the testimony of the victims at trial

conflicted with both their statements to police and testimony at the

preliminary hearing.    Anders Brief at 13-16.        However, before we may

review this issue, we must determine whether it has been properly

preserved for our review.

      Pennsylvania     Rule   of   Criminal    Procedure   607   governs   claims

challenging the weight of the evidence and states in relevant part as follows.

            Rule 607. Challenges to the Weight of the
            Evidence

            (A) A claim that the verdict was against the weight
            of the evidence shall be raised with the trial judge in
            a motion for a new trial:

                  (1) orally, on the record, at any time before
                  sentencing;

                  (2) by written motion at any time before
                  sentencing; or

                  (3) in a post-sentence motion.

Pa.R.Crim.P. 607(A).     “The purpose of this rule is to make it clear that a

challenge to the weight of the evidence must be raised with the trial judge or




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it will be waived.”      Commonwealth v. McCall, 911 A.2d 992, 997 (Pa.

Super. 2006).

       Here, Appellant failed to preserve a weight of the evidence claim.

Appellant did not file a post-sentence motion.         Further, we have reviewed

the certified record and transcripts, and at no point prior to, or at

sentencing, was a challenge to the weight of the evidence raised.            As a

result, we agree with Appellant’s counsel and the Commonwealth that

Appellant has waived his claim that the jury’s verdict was against the weight

of the evidence.5       See McCall, supra.         Therefore, this claim is wholly

frivolous.




____________________________________________


5
  Even if we reached the merits of Appellant’s claim, no relief would be due
to Appellant. In reviewing a weight of the evidence claim, we defer to the
jury’s findings on credibility and we cannot substitute our judgment for that
of the jury on credibility issues. Commonwealth v. Palo, 24 A.3d 1050,
1055 (Pa. Super. 2011), appeal denied, 34 A.3d 828 (Pa. 2011). Here,
Appellant claims that the witnesses’ testimony at trial was inconsistent.
Anders Brief at 13-16.          Additionally, Appellant argues that the trial
testimony of Aponte and Guzman, abandoning their earlier statements to
police and at the preliminary hearing that Appellant was one of the gunmen,
was entitled to greater weight than those earlier statements. Id. We note
that it is the province of the jury to resolve inconsistencies in testimony and
determine credibility. The jury was free to assign more credibility to the
earlier statements of Aponte and Guzman and discredit their testimony at
trial. We will not disturb the jury’s findings on appeal. See Palo, supra.
Therefore, the verdict was not against the weight of the evidence.




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       We turn next to the issues Appellant raises in his pro se reply to

counsel’s Anders Brief.6 Appellant articulates the following 12 issues.

              1.     [Whether] [t]he evidence was insufficient to
                     support Appellant[’]s conviction for aggravated
                     assault in that evidence presented failed to
                     prove beyond a reasonable doubt that
                     Appellant was actually at the scene of the
                     crime[?]

              2.     That even if the Court determines that the
                     Commonwealth proved that Appellant was
                     present at the scene of the crime, it
                     nonetheless failed to prove, beyond a
                     reasonable doubt[,] that Appellant attempted
                     to cause “seriously bodily injury” to the
                     complainant   [pursuant   to]    Pa.   C.S.A.
                     §[ ]901(A)[?]

              3.     [Whether] [t]he evidence was insufficient to
                     support     Appellant[’]s   aggravated   assault
                     conviction in that the evidence presented fialed
                     [sic] to prove, beyond a reasonable doubt, that
                     Appellant had the requisite “intent” to cause
                     serious bodily injury to the complainant[?]

              4.     [Whether] [t]he evidence used to convict
                     Appellant was so weak[,] contradictory,
____________________________________________


6
  “When a pro se … brief [in response to counsel’s Anders brief and petition
to withdraw] has been filed within a reasonable amount of time, however,
the Court should then consider the merits of the issues contained therein
and rule upon them accordingly.” Commonwealth v. Baney, 860 A.2d
127, 129 (Pa. Super. 2004), appeal denied, 877 A.2d 459 (Pa. 2005).
Additionally, the failure to raise the issues in a Rule 1925(b) statement does
not preclude the review of the merits of Appellant’s additional pro se claims
because “to hold otherwise would prevent a defendant from choosing to
proceed pro se” which would “nullify a defendant’s constitutional right to
direct appeal, and eliminate one of the choices available to a defendant
under Anders[.]” Commonwealth v. Bishop, 831 A.2d 656, 659-660 (Pa.
Super. 2003).



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               inconsistent, and inconclusive, that as a matter
               of law, no probability of fact could have been
               drawn from the combined circumstances;
               [and] the jury’s verdict cannot be interpreted
               as being nothing more than based on
               suspicion, conjecture, and surmise[?]

          5.   [Whether]     [t]he    Commonwealth,       while
               knowing that the complainant was not telling
               the truth on the stand, made no effort to stop
               the complainant; allowing the complainant to
               continue to present perjured testimony,
               without ever alerting the jury to the fact that
               the testimony the complainant was offering
               was in total contradiction to her [testimony at]
               two earlier preliminary hearing[s][?]

          6.   [Whether,] [w]ith regards to the “reckless”
               element      of   aggravated     assault,    the
               Commonwealth failed to prove that Appellant
               acted under a manifest extreme indifference to
               the value of human life, in that evidence failed
               to establish, as a matter of law, that the
               complainant was actually shot at, and if she
               was, that it was the Appellant that shot her[?]

          7.   [Whether] [t]he evidence presented was
               insufficient to support Appellant[’]s conviction
               for conspiracy to commit aggravated assault,
               in that the Commonwealth failed to prove,
               beyond a reasonable doubt[,] that Appellant
               was present at the scene of the crime, or
               within the group that allegedly shot at the
               complainant[?]

                                   …

          8.   [Whether] [c]ounsel was ineffective in that he
               had no reasonable bases [sic] in [sic] which to
               justify foregoing a properly, court suggested,
               motion for arrest of judgment; [and] counsel
               failed to take affirmative action in order to
               allow the court to assess the credibility of the
               testimony offered by the Commonwealth[?]

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              9.     [Whether] [c]ounsel was ineffective for failing
                     to object to the court’s instruction to the jury
                     that [A]ppellant did not have a license to carry
                     a weapon [that] was highly prejudicial to
                     [A]ppellant because (1) mentioning that
                     [A]ppellent [sic] did not have a license to carry
                     effectively placed Appellant at the scene of the
                     crime when his primary defense was that he
                     was not present at the time the assault was
                     committed, [and] (2) that earlier, Appellant
                     stipulated to the [trial] court that he would
                     forego trial on the weapon charge for another
                     day[?]

              10.    [Whether] counsel was ineffective by failing to
                     object to the [trial] court’s introduction to the
                     jury of an unsigned certificate of non-
                     compliance licensure, and stipulating to it’s
                     [sic] authentication, against his Appellant’s
                     interest[?]

                                          …

              11.    [Whether] the [trial] court erred when it
                     mention[ed] to the jury the certificate of non-
                     licensure, because in doing so, (1) Appellant’s
                     primary defense[] that he was not present at
                     the scene of the crime, and (2) because it was
                     specifically stipulated by Appellant that he
                     wanted the unlawful charge tried at another
                     time[?]

              12.    [Whether] Appellant’s sentence was excessive
                     and disproportionate to the circumstances in
                     the case, thus, illegal and invalid, as a matter
                     of law[?]

Appellant’s Reply to Counsel’s No Merit Brief at I-III.

      Initially, we note that issues 1, 2, 3, 4, and 6 raise claims of

sufficiency   of    the   evidence   regarding   Appellant’s   aggravated   assault


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conviction. These sufficiency of the evidence claims are disposed of by our

above discussion of the issues raised in counsel’s Anders brief.       We have

detailed the evidence that was sufficient to enable the jury to conclude that

Appellant intended to inflict serious bodily injury on Guzman and attempted

to do so by firing a handgun at her.

      Additionally, issue 7 contests the sufficiency of the evidence for

Appellant’s conspiracy conviction by arguing that there is insufficient

evidence that he was present at the crime scene or part of the group who

shot at Guzman. The offense of criminal conspiracy is defined as follows.

             § 903. Criminal conspiracy

             (a) Definition of conspiracy.--A person is guilty of
             conspiracy with another person or persons to commit
             a crime if with the intent of promoting or facilitating
             its commission he:

                   (1) agrees with such other person or persons
                   that they or one or more of them will engage
                   in conduct which constitutes such crime or an
                   attempt or solicitation to commit such crime;
                   or

                   (2) agrees to aid such other person or persons
                   in the planning or commission of such crime or
                   of an attempt or solicitation to commit such
                   crime.

18 Pa.C.S.A. § 903(a). As detailed above, there was sufficient evidence to

allow the jury to find that Appellant was present at the crime scene and was

part of the group who shot at Guzman.            Therefore, these claims are

frivolous.


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      To the extent we can discern Appellant’s issue 5, it appears to raise a

challenge to the weight of the evidence. Without the benefit of a developed

argument, we cannot ascertain Appellant’s specific contention and we will

not advance claims on his behalf. Commonwealth v. Kane, 10 A.3d 327,

331 (Pa. Super. 2010).      To the extent Appellant’s claim does raise a

challenge to the weight of the evidence, we have addressed said challenge

above and concluded it is frivolous.

      In issues 8, 9, and 10, Appellant seeks to assert trial counsel’s

ineffectiveness.   Appellant’s Reply to Counsel’s No Merit Brief at II-III.

However, our precedent makes clear that, with limited exception, this Court

may not review claims of ineffective assistance on direct appeal.        See

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding, absent

limited circumstances, “claims of ineffective assistance of counsel are to be

deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal[]”).        The Holmes Court noted two narrow

exceptions for “extraordinary circumstances” to the broader rule, holding

“where the trial court, in the exercise of its discretion, determines that a

claim (or claims) of ineffectiveness is both meritorious and apparent from

the record so that immediate consideration and relief is warranted,”     and

allowing review for “good cause,” such as the shortness of a sentence, of




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“multiple, and indeed comprehensive, ineffectiveness claims if such review is

accompanied by a waiver of PCRA rights….” Id. at 577-578.

      Here, neither exception applied to permit post-verdict review of

Appellant’s ineffectiveness claims.    The trial court did not determine that

Appellant’s claim of ineffectiveness was meritorious or apparent from the

record such that immediate consideration and relief was warranted. See id.

at 577.   Neither did the trial court find good cause to permit post-verdict

review of said claims and Appellant did not waive his PCRA rights. See id.

at 578.   Accordingly, we cannot review these ineffectiveness claims raised

on direct appeal, and Appellant is without prejudge to raise them in a PCRA

petition. See id. at 576.

      Next, in issue 11, Appellant challenges the trial court’s act of informing

the jury that Appellant was not licensed to carry a firearm. Appellant’s Reply

to Counsel’s No Merit Brief at III. However, before we may review this claim

we must determine whether it has been properly preserved for our review.

See Pa.R.A.P. 302(a) (providing “[i]ssues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”)      Our Supreme

Court has emphasized the importance of issue preservation.

                    Issue preservation is foundational to proper
            appellate review. Our rules of appellate procedure
            mandate that “[i]ssues not raised in the lower court
            are waived and cannot be raised for the first time on
            appeal.” Pa.R.A.P. 302(a). By requiring that an issue
            be considered waived if raised for the first time on
            appeal, our courts ensure that the trial court that
            initially hears a dispute has had an opportunity to

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            consider the issue. This jurisprudential mandate is
            also grounded upon the principle that a trial court,
            like an administrative agency, must be given the
            opportunity to correct its errors as early as possible.
            Related thereto, we have explained in detail the
            importance of this preservation requirement as it
            advances the orderly and efficient use of our judicial
            resources. Finally, concepts of fairness and expense
            to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations

omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.

2013) (citation omitted).

      In this case, we note that during the trial, the parties stipulated that

Appellant was not licensed to carry a weapon. N.T., 6/11/2013, at 104-105.

The stipulation was marked as exhibit C-31. Id.       Appellant’s trial counsel

stated, “there is no objection to the Commonwealth’s Exhibits C-1 through

C-31.” Id. at 106. Moreover, after informing the jury that Appellant was

not licensed to carry a firearm, the judge cautioned the jury that,

“[u]nderlying [the stipulation,] is whether he, in fact, had a weapon. That is

the question for you, the jury, to decide. That is not for me to decide. The

document just speaks for that, that he did not have a license.” Id. at 105.

In our review of the record, we cannot find a single instance in which

Appellant objected to the contents of the stipulation or the trial court’s

instructions, or requested that the trial court supplement or change its

instruction to the jury. As a result, we deem this issue waived for failure to




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raise the issue in the trial court. See In re F.C. III, supra; Miller, supra;

Pa.R.A.P. 302(a).

     In issue 12, Appellant contends that his sentence was excessive and

disproportionate to the circumstances in the case. Such a claim implicates

the discretionary aspects of sentencing.    A challenge to the discretionary

aspects of a sentence is not appealable as of right.    Commonwealth v.

Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014).

           Before we reach the merits of this issue, we must
           engage in a four part analysis to determine: (1)
           whether the appeal is timely; (2) whether Appellant
           preserved his issue [at sentencing or in a motion to
           reconsider and modify sentence]; (3) whether
           Appellant’s brief includes a concise statement of the
           reasons relied upon for allowance of appeal with
           respect to the discretionary aspects of sentence [as
           required by Rule 2119(f) of the Pennsylvania Rules
           of Appellate Procedure]; and (4) whether the concise
           statement raises a substantial question that the
           sentence is appropriate under the sentencing code.
           The third and fourth of these requirements arise
           because Appellant’s attack on his sentence is not an
           appeal as of right. Rather, he must petition this
           Court, in his [Rule 2119(f)] concise statement of
           reasons, to grant consideration of his appeal on the
           grounds that there is a substantial question. [I]f the
           appeal satisfies each of these four requirements, we
           will then proceed to decide the substantive merits of
           the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

     Here, Appellant’s discretionary aspect of sentencing challenge was not

preserved below. Our review of the transcript reveals that Appellant did not


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preserve any issues at sentencing.             Neither did Appellant file any post-

sentence motion. Therefore, we conclude this claim is waived, and we are

precluded from granting an allowance of appeal.                 Edwards, supra.

Accordingly, we conclude Appellant’s appeal on this issue is frivolous.7

       For the reasons discussed above, our independent review of the record

leads us to conclude that Appellant’s appeal is wholly frivolous. Therefore,

we agree with counsel’s assessment of the appeal, and conclude counsel has

satisfied the requirements for withdrawal. Accordingly, we grant counsel’s

petition to withdraw.        Moreover, we affirm Appellant’s August 2, 2013

judgment of sentence.

       Petition to withdraw granted. Judgment of sentence affirmed.




____________________________________________


7
   Even if Appellant had properly preserved and presented this claim, we
agree with the Commonwealth that it is frivolous on its merits. Aggravated
assault is graded as a felony of the first degree, and Appellant received a
sentence in the statutory limits for a felony of the first degree. See 18
Pa.C.S.A. § 1103(1). Before imposing its sentence, the trial court noted
Appellant’s extensive criminal history and involvement in the narcotics trade.
This included 14 arrests as an adult resulting in eight convictions, including
the current offenses. N.T., 8/2/13, at 8. Five of those were felonies of the
third degree. Id. He had also had probation revoked three times. Id.
Thus, the trial court fully stated its reasons for imposing the sentence, and
the sentence was not manifestly excessive or disproportionate given the
circumstances.



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J-S75005-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




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