J-S95014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

NICHOLAS JAMES BOSSONS

                            Appellant               No. 1724 EDA 2016


      Appeal from the Judgment of Sentence Entered February 20, 2015
           In the Court of Common Pleas of Northampton County
              Criminal Division at No: CP-48-CR-0000794-2012


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED MARCH 13, 2017

       Appellant, Nicholas James Bossons, appeals nunc pro tunc from the

February 20, 2015 judgment of sentence imposing an aggregate thirty to

sixty years of incarceration for attempted murder,1 robbery,2 aggravated

assault,3 and several related offenses. Counsel has filed a brief and petition

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).             We affirm the

judgment of sentence and grant counsel’s petition to withdraw.


____________________________________________


1
    18 Pa.C.S.A. §§ 901 and 2501.
2
    18 Pa.C.S.A. § 3701.
3
    18 Pa.C.S.A. § 2702.
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        Appellant’s convictions arose from a January 10, 2014 incident in

which Appellant entered the home of the victim, Jeffrey Janos, uninvited,

stabbed Janos multiple times over the course of ten to fifteen minutes, and

stole a video game console. Police apprehended Appellant in his apartment

the same day. In Appellant’s apartment, police found a trail of blood and a

bloodstained bag that contained a video game console.                    The video game

console was later identified as belonging to Janos. Appellant struggled with

and elbowed one of the arresting officers and attempted to flee his

apartment.

        Trial commenced on December 1, 2014.                         The Commonwealth

introduced several incriminating statements Appellant made after police

apprehended him. Janos testified and provided a first-hand account of the

assault.     On December 4, 2014, a jury found Appellant guilty of the

aforementioned offenses. The trial court imposed sentence on February 20,

2015, and Appellant filed a timely post-sentence motion on March 2, 2015.

The trial court denied the post-sentence motion on June 4, 2015. Appellant

failed to file a direct appeal. On December 29, 2015, Appellant filed a timely

PCRA4 petition seeking reinstatement of his direct appeal rights. On May 27,

2015,      the   PCRA   court   granted        relief   with   no   opposition   from   the



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4
    42 Pa.C.S.A. §§ 9541-46.



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Commonwealth. Appellant filed this timely nunc pro tunc appeal on May 31,

2015.

        Appointed counsel has filed a brief and petition to withdraw under

Anders and Santiago.         Before we address the merits, we consider the

adequacy of counsel’s compliance with these requirements:

        (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 must also advise the defendant 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), appeal denied, 936 A.2d 40

(Pa. 2007).      We have reviewed counsel’s filings and found them in

compliance with the foregoing. We will now consider the merits.

        The Anders Brief addresses four issues, the first of which is the trial

court’s decision to grant the Commonwealth’s motion in limine to admit

Appellant’s incriminating pretrial statements.    In particular, Appellant said

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the following to a police officer: “I’m a piece of shit and I’m wanted and I’m

on work release.” N.T. Trial, 12/2/2014, at 96. Appellant would argue that

the reference to work release was unfairly prejudicial because it reveals prior

criminal activity.   The Commonwealth sought to admit the statement as

evidence of Appellant’s motive for fighting with one of the arresting police

officers.   The trial court admitted the statement subject to a limiting

instruction that the statement was relevant only as evidence of Appellant’s

motive for assaulting and resisting the police officer.

      We review a trial court’s decision to grant or deny a motion in limine

for abuse of discretion. Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa.

Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014). Rule 404(b) of the

Pennsylvania Rules of Evidence provides that “[e]vidence of a crime, wrong,

or other act is not admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with the

character.” Pa.R.E. 404(b)(1). Rule 404(b) also provides

            This evidence may be admissible for another purpose, such
      as proving motive, opportunity, intent, preparation, plan,
      knowledge, identity, absence of mistake, or lack of accident. In
      a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(2).

      In Commonwealth v. Tedford, 567 A.2d 610 (Pa. 1989), the

Supreme Court affirmed the trial court’s decision to permit a witness to

reference to the defendant’s work release.      According to the witness, the



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defendant murdered his rape victim because the defendant feared the

repercussions if she went to the police, especially because the defendant

was on work release.         Id. at 621-23.      The instant case is similar, in that

Appellant committed a serious felony while under a work release sentence

from another offense.         His consciousness of the work release violation

helped explain the actions for which he faced trial in this case. We discern

no abuse of discretion in the trial court’s decision to admit the reference to

Appellant’s work release as evidence of his motive to elbow a police officer

and resist arrest.

      Next, the Anders Brief addresses an apparent rift between Appellant

and his trial counsel. The record reveals that Appellant entered, and then

withdrew, a guilty plea. Subsequently, the Commonwealth offered another

plea bargain.   Appellant refused to plead guilty.         He stated on the record

that he was upset with counsel’s recommendation that he accept the

Commonwealth’s       offer     of   a   twelve    to   twenty-four   year   sentence

recommendation.       Appellant did not, however, ask for appointment of

different counsel.   The Anders brief correctly notes that this issue is not

preserved for direct appeal because the trial court never denied any motion

for appointment of new counsel.

      Third, the Anders Brief addresses the sentencing court’s decision not

to merge the attempted murder and aggravated assault offenses. This issue

implicates the legality of Appellant’s sentence.               Commonwealth v.


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Petterson, 49 A.3d 903, 911 (Pa. 2012), appeal denied, 68 A.3d 776 (Pa.

2013). Merger is governed by statute:

             No crimes shall merge for sentencing purposes unless the
       crimes arise from a single criminal act and all of the statutory
       elements of one offense are included in the statutory elements of
       the other offense. Where crimes merge for sentencing purposes,
       the court may sentence the defendant only on the higher graded
       offense.

42 Pa.C.S.A. § 9765.

       Here, the sentencing court found that the attempted murder and

aggravated assault offense under § 2702(a)(1)5 did not arise from a single

criminal act because Appellant stopped his stabbing assault of Janos,

searched Janos’ home and removed the game console from Janos’ television,

and then resumed assaulting Janos, this time by beating him with a metal

detector.     N.T. Sentencing, 2/20/2015, at 16.        In Commonwealth v.

Belsar, 676 A.2d 632 (Pa. 1996), the defendant shot the victim, then broke

off the assault to look for the victim’s car keys, then kicked the victim when

he discovered he was not dead.           The Supreme Court reasoned:   “When a

criminal act has been committed, broken off, and then resumed, at least two

crimes have occurred and sentences may be imposed for each. To hold that

multiple assaults constitute only one crime is to invite criminals like Belsar to
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5
   The Commonwealth charged Appellant under § 2702(a)(1) and (4). The
latter—aggravated assault with a deadly weapon—merged with attempted
murder because both charges arose from the stabbing. The charge under
subsection (a)(1) arose from the subsequent beating with the metal
detector. See N.T. Sentencing, 2/20/2015, at 16-17.



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brutalize their victims with impunity.”    Id. at 634.   Belsar is directly on

point and controlling. We agree with counsel that this issue lacks arguable

merit.

      Finally, the Anders Brief addresses the sufficiency of the evidence.

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

denied, 95 A.3d 275 (Pa. 2014).

      As summarized above, the record contains overwhelming evidence of

Appellant’s guilt.   Janos provided an eyewitness account of the entire

assault, and the jury was entitled to credit his testimony.       In addition,

Appellant made incriminating statements to police, and police retrieved

Janos’ missing video game console from a bloodstained bag in Appellant’s

apartment.    Testing confirmed the presence of Janos’ DNA on the game

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console found in Appellant’s home. We agree with counsel’s assertion that a

challenge to the sufficiency of the evidence lacks arguable merit.

       We now consider Appellant’s response to counsel’s petition to

withdraw.     Appellant’s response raises one issue we have yet to address,

that being the sentencing court’s exercise of discretion.6 The record reflects

that Appellant preserved this issue in a post-trial motion for modification of

his sentence.7 Appellant asserts:

             Challenging the sentence; Appellant was convicted of an
       incohante [sic] crime under the prior crime of violence sentence
       enhancement provisions of the sentencing guidelines and
       mandatory sentencing statute; and the trial court double
       counted [Appellant’s] offense for sentencing purposes, whereas
       the offenses were counted to calculate his prior record score and
       again in grading the gravity of the offenses and as sentencing
       enhancements.

Appellant’s Opposition to Counsel’s Motion to Withdraw, at ¶ 2.      Appellant

also asserts that the trial court focused entirely on the severity of the

offense and not on Appellant’s history and prospects for rehabilitation.” Id.



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6
   To preserve this issue, an appellant must raise it in a post-sentence
motion, file timely appeal, include a Pa.R.A.P. 2119(f) statement in his or
her brief, and present a substantial question for review. Commonwealth v.
Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal denied, 77 A.3d 1258
(Pa. 2013).
7
   Appellant has not provided a Pa.R.A.P. 2119(f) statement, but the
Commonwealth has not objected to its absence. This defect is waived
absent an objection from the Commonwealth. Commonwealth v. Karns,
50 A.3d 158, 166 (Pa. super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).



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       Assuming without deciding that these present substantial questions,

the record does not support Appellant’s assertions.               The sentencing

transcript reflects the following:

             The guidelines have been provided to the Court with the
       presentence investigation. They indicate [Appellant] has a prior
       record score of 5 based on his previous conviction of robbery as
       a felony of the first degree and various misdemeanors. ]

             The deadly weapon used enhancement applies to the
       attempted murder count, the robbery count, and the aggravated
       assault count under Section 2702(a)(1).      The jury made a
       specific finding that the defendant did, in fact, use a deadly
       weapon during the commission of these three offenses.

              In addition, based upon the evidence of record and the
       specific findings by the jury on the verdict sheet, the court
       hereby makes an independent finding that a deadly weapon was
       used during the commission of the crimes of attempted murder,
       robbery and aggravated assault under Section 2702(a)(1) of
       Title 18 to satisfy the requirements of Section 303.10(a)(2).[8]

             As such, the Court will use the deadly weapon
       enhancement used matrix under Section 303.18. Accordingly,
       based on [Appellant’s] prior record score and the applicability of
       the deadly weapon used enhancement, the relevant guidelines
       are as follows:

N.T. Sentencing, 2/20/2015, at 10-11. The court went on to describe the

guideline range for each offense.          Id. at 11-13.   We discern no abuse of

discretion. The prior record score, the offense gravity score, and the deadly
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8
  The reference is to 204 Pa. Code § 303.10(a)(2), which provides that the
sentencing court shall apply the Deadly Weapon Enhancement (DWE)
sentencing matrix when the court finds the defendant used a deadly weapon
during the commission of an offense. The jury finding was necessary for
Appellant’s conviction under § 2702(a)(4), aggravated assault with a deadly
weapon.



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weapon enhancement are separate items, each of which contributes to the

applicable sentencing guideline range for a given offense.         The record

contains no evidence of improper double counting.

      Likewise, the record contains no support for Appellant’s assertion that

the trial court ignored Appellant’s characteristics and rehabilitative needs.

Counsel apprised the sentencing court of some of the difficulties of

Appellant’s upbringing, including his mother’s heroin addiction.          N.T.

Sentencing, 2/20/2015, at 20. Counsel also argued that a lengthy sentence

would not serve Appellant’s rehabilitative needs.     Id. at 22-25.   Appellant

was only 24 years old at the time of sentencing. Id. at 24. The court was

also apprised of the impact of the crime on Janos, who is now unable to care

for his ten-year-old son.    Id. at 27.      Janos’ ability to work as a self-

employed construction and home improvement contractor is severely

limited. Id. at 27-28. Janos suffered permanent nerve damage. Id. at 29.

The sentencing court noted Appellant’s prior unsuccessful attempts at

rehabilitation and his psychological issues.    Id. at 35-38.   The sentencing

court expressly noted its consideration of statements offered by Appellant

and his counsel.    Id. at 37.    The record confirms that the trial court

considered all pertinent information in deciding on an appropriate sentence.

Id. at 38-40. We discern no arguable merit in a challenge to the trial court’s

sentencing discretion.




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     In summary, we have considered the issues set forth in the Anders

Brief and in Appellant’s response to counsel’s petition to withdraw. We have

also conducted our own independent review of the record. We discern no

issues of arguable merit, and therefore we affirm the judgment of sentence

and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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