J-S02033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    SALEENA HUNTER                             :
                                               :
                       Appellant               :       No. 339 EDA 2018

          Appeal from the Judgment of Sentence September 18, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004548-2016


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED APRIL 02, 2019

        Appellant, Saleena Hunter, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following her

bench trial convictions for attempted murder, aggravated assault, possession

of an instrument of crime (“PIC”), simple assault, and recklessly endangering

another person (“REAP”).1 We affirm and grant counsel’s petition to withdraw.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. Procedurally, we add the court ordered Appellant on January

22, 2018, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied on February 4, 2018. On June

____________________________________________


1   18 Pa.C.S.A. §§ 901(a), 2702(a), 907(a), 2701(a), 2705, respectively.
J-S02033-19


25, 2018, counsel filed an application to withdraw and a brief in this Court

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967).

      As a preliminary matter, counsel seeks to withdraw his representation

pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition

the Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)

file a brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise her of

her right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.      Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

      In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:


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         Neither Anders nor [Commonwealth v. McClendon, 495
         Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
         provide an argument of any sort, let alone the type of
         argument that counsel develops in a merits brief. To repeat,
         what the brief must provide under Anders are references
         to anything in the record that might arguably support the
         appeal.

                                  *     *   *

         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that arguably
         supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n 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 178-79, 978 A.2d at 361.

      Instantly, Appellant’s counsel has filed a petition to withdraw.      The

petition states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention.     In the Anders brief, counsel provides a

summary of the facts and procedural history of the case. Counsel’s argument


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refers to relevant law that might arguably support Appellant’s issues. Counsel

further states the reasons for his conclusion that the appeal is wholly frivolous.

Therefore, counsel has substantially complied with the technical requirements

of Anders and Santiago.

         Appellant has not responded to the Anders brief pro se or with newly

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

           WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT
           THAT COULD BE RAISED ON DIRECT APPEAL PRESENTLY
           BEFORE THIS COURT AND WHETHER THE APPEAL IS
           WHOLLY FRIVOLOUS?

(Anders Brief at 4).

         Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

           [W]e conduct a four-part analysis to determine: (1) whether
           appellant has filed a timely notice of appeal, see Pa.R.A.P.
           902 and 903; (2) whether the issue was properly preserved
           at sentencing or in a motion to reconsider and modify
           sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
           brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
           there is a substantial question that the sentence appealed
           from is not appropriate under the Sentencing Code, 42
           Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

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they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

        Our standard of review concerning the discretionary aspects of

sentencing is as follows:

             Sentencing is a matter vested in the sound discretion of the
             sentencing judge, and a sentence will not be disturbed on
             appeal absent a manifest abuse of discretion. In this
             context, an abuse of discretion is not shown merely by an
             error in judgment. Rather, the appellant must establish, by
             reference to the record, that the sentencing court ignored
             or misapplied the law, exercised its judgment for reasons of
             partiality, prejudice, bias or ill will, or arrived at a manifestly
             unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005). Pursuant to Section 9721(b),

“the court shall follow the general principle that the sentence imposed should

call for confinement that is consistent with the protection of the public, the

gravity of the offense as it relates to the impact on the life of the victim and

on the community, and the rehabilitative needs of the defendant.”                       42

Pa.C.S.A. § 9721(b).         The record as a whole must reflect the sentencing

court’s consideration of the facts of the case and the defendant’s character.

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). “In particular, the court should

refer   to     the   defendant’s    prior   criminal   record,   [her]   age,      personal

characteristics and [her] potential for rehabilitation.”           Commonwealth v.


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Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868

A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d

902 (2005).

      The following principles apply to a weight of the evidence claim:

            The weight of the evidence is exclusively for the finder
            of fact who is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). Moreover, where the trial court has
         ruled on the weight claim below, an appellate court’s role is
         not to consider the underlying question of whether the
         verdict is against the weight of the evidence. Rather,
         appellate review is limited to whether the trial court palpably
         abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      Appellate review of a claim challenging the sufficiency of the evidence

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


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        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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

     “A person commits an attempt when, with intent to commit a specific

crime, [she] does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S.A. § 901(a).

        A person may be convicted of attempted murder if [she]
        takes a substantial step toward the commission of a killing,
        with the specific intent in mind to commit such an act. See
        18 Pa.C.S.A. §§ 901, 2502. The substantial step test
        broadens the scope of attempt liability by concentrating on
        the acts the defendant has done and does not any longer
        focus on the acts remaining to be done before the actual
        commission of the crime. The mens rea required for first-
        degree murder, specific intent to kill, may be established
        solely from circumstantial evidence. [T]he law permits the
        fact finder to infer that one intends the natural and probable
        consequences of [her] acts.

Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.Super. 2008), appeal

denied, 600 Pa. 760, 967 A.2d 958 (2009) (most internal citations and

quotation marks omitted).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Donna M.

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J-S02033-19


Woelpper, we conclude Appellant’s issues merit no relief.        The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed March 20, 2018, at 2-5) (finding:

regarding Appellant’s discretionary aspects claim, court deviated from

sentencing guidelines to give Appellant significantly mitigated sentence; at

sentencing, court stated on record it had considered all relevant factors in

determining Appellant’s sentence; sentencing court did not abuse its

discretion; as to Appellant’s weight claim, evidence established that when

Appellant started to stab Victim repeatedly, period of mutual combat had

already ended; Appellant’s conviction for attempted murder does not shock

court’s sense of justice; regarding Appellant’s sufficiency claim, evidence

showed Appellant executed surprise attack on Victim as Victim walked away

from Appellant and stabbed Victim at least twelve times in vital areas of body,

including head and neck; circumstances of Appellant’s attack were sufficient

to infer Appellant’s specific intent to kill).   The record supports the court’s

decision.   Following an independent review of the record, we agree with

counsel that the appeal is wholly frivolous.           See Dempster, supra.

Accordingly, we affirm based on the trial court’s opinion and grant counsel’s

petition to withdraw.

      Judgment of sentence affirmed.         Counsel’s petition to withdraw is

granted.




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J-S02033-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/19




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                     ·"'· ·. ' MMONWEALTH              OF                                        CP-5l-CR-0004548-2016
                         PENNSYLVANIA

                                    v.
                                                                                                 SUPERIOR COURT
                         SALEENA HUNTER                                                          339 EDA 2018

                                                                                    OPINION
                                           /'    -      -
                                                 CP·51-CR-0004!,48.;!016Comm v HUNTER, SA�EENA
                                                                       Opc,..on      ,
                         WOELPPER, J.                                                            MARCH'l.D, 2018

                                                      IIIIIIIIII IIII Ill I H Ill
                                                               8084449371
                                           '-·

                   I.         PROCEDURAL & FACTUAL BACKGROUND

                         On July 7, 2017, fol1owing a waiver trial, this Court convicted Saleena Hunter

              ("defendant") of attempted murder1 and related charges.2 Defendant appeals her judgments of

              sentence, challenging the discretionary aspects of her sentence and the sufficiency and weight of

             the evidence. Her claims are meritless.

                         On December 19, 2015, at approximately 12:45 A.M., defendant and her sister, Aeisha

             Rohman, were "hanging out" in Ms. Rohman's car at the comer of 9rh and Cumberland Streets in

             Philadelphia. While still in the car, defendant called another relative and started arguing on the

             phone. As defendant became more agitated, Ms. Rohman said she did not want to get involved

             and asked defendant to get out of her car. When defendant refused, Ms. Rohman got out of the

             car, walked around to the passenger side, opened the passenger-side door, and again asked


              1
               18 Pa.C.S. §§ 90l(a), 2502(a).
             2
                Defendant was also convicted of aggravated assault ( 18 Pa.C.S. § 2702), possessing an
            ·instrument of crime (18 Pa.C.S. § 907(a)), simple assault (18 Pa.C.S. § 2701), and recklessly
             endangering another person ( 18 Pa.C.S. § 2705).
defendant to get out. Defendant responded by challenging Ms. Rohman to a fistfight. The two

began punching one another and continued until several bystanders broke up the fight. As Ms.

Rohman turned and began walking back to her car, defendant snuck up from behind and stabbed

her in her neck. Defendant continued to stab her sister in her neck, head, and aims approximately

twelve to fifteen times. Medics took Ms. Rohman to the hospital, where she was operated on and

listed in critical condition. N.T. 7/7/17, 17·23, 57.

         After convicting defendant of the above charges, the Court deferred sentencing for a

presentence investigation and mental health evaluation. On· September 18, 2017, the Court

sentenced defendant to an aggregate term of twelve to thirty-five years of incarceration. Defendant

filed a post-sentence motion, which this Court denied on January 9, 201 i. Defendant appealed.

 . II.      DISCUSSION

                A. Discretionary Sentencing Claim

         Defendant's first claim is that this Court abused its sentencing discretion by failing to

"appropriately weigh and consider" mitigating factors. Statement of Errors, 1 1. "Sentencing is a

matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed

on appeal absent a manifest abuse of discretion." Commonwealth v. Antidormi, 84 A.3d 736, 760

(Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014) (internal quotation and citation omitted).

To prevail on a discretionary sentencing claim, the defendant must establish "that the sentencing

court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice,

bias or ill wilJ, or arrived at a manifestly unreasonable decision." Id. When fashioning its sentence,

the court must consider "the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative needs of the

defendant. The court shall also consider any guidelines for sentencing ... " 42 Pa.C.S. § 9721(b).



                                                  2
If the court sentences a defendant outside of those guidelines, it must state its reasons for the

departure. Id.

        Here, the Court sentenced defendant to an aggregate term of twelve to thirty-five years of

incarceration. The sentencing guidelines, applying the enhancement for use of a deadly weapon,

recommended a minimum sentence of seventeen and one-half to twenty years. Therefore, the

Court deviated from the guidelines to give defendant a significantly mitigated sentence. The Court

gave a detailed explanation of its reasoning in ordering this sentence:

                         In formulating its sentence, the Court has considered the
                 protection of the public, the gravity of the offense as it relates to the
                 impact on the life of the victim, and the rehabilitative needs of
                 [defendant]. The Court has considered the defendant's presentence
                 investigation, the mental health evaluation, the deadly weapon
                 enhancement, [and] arguments of both attorneys.
                         The Court has also considered the testimony of the
                 defendant's [relatives and her family friend].
                         The Court has considered the defendant's upbringing and the
                 fact that she was not taking her medication due to pregnancy at the
                 date of this occurrence. The Court has considered [defendant's]
                 substance abuse issues and her mental health issues, the fact that she
                 has strong family support [and that] she waived her right to a jury
                 trial.                  ·
                         The Court has considered the fact that [defendant] shows a
                 sense of sorrow and remorse and the history and the character of
                 [defendant], in addition to the particular circumstances of the
                 offense, and the Court has considered the defendant's allocution.

N.T. 9/18/17, 25-26.

        Given the Court's thorough consideration of the above factors, there was no abuse of

discretion.

                 B. Weight of the Evidence

        Defendant next cla�ms this Court erred when it denied her post-sentence weight of the

evidence claim. A defendant is not entitled to a new trial based on a weight of the evidence claim

unless the verdict "is so contrary to the evidence as to shock one's sense of justice."

                                                    3
.   ..

         Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). Appellate review is limited to whether

         the trial judge palpably abused its discretion in denying the appellant's motion for a new trial. Id.

         As such, a "trial court's denial of a motion for a new trial based on a weight of the evidence claim

         is the least assailable of its rulings." Id at 879-80i

                 Defendant argues that the Court should have granted her post-sentence weight of the

         evidence claim because "the fight between [defendant] and complainant was mutual combat, and

         not an attempt to commit murder." Statement of Errors, 12. All evidence, however, established

         that at the time defendant began repeatedly stabbing her sister in vital parts of the body, the period

         of"mutual combat" had ended. Because the verdict did not shock one's sense of justice, the Court

         did not abuse its discretion in denying defendant's weight of the evidence claim.

                         C. Sufficiency of the Evidence

                 Defendant's final claim is that the evidence was insufficient to sustain the attempted

         murder conviction because "there was no evidence of any malice to commit murder." Statement

         of Errors, ,i 3. On sufficiency review, all evidence is viewed in the light most favorable to the

         verdict winner to determine whether "there is sufficient evidence to enable the fact-finder to find

         every element of the crime beyond a reasonable doubt." Antidormi, 84 A.3d at 756. The

         Commonwealth may meet its burden "by means of wholly circumstantial evidence." id. Finally,

         the reviewing court "may not weigh the evidence and substitute [its] judgment for the fact-finder."

         id.

                 To prove a defendant guilty of attempted murder, the Commonwealth must establish that

         the defendant acted with the specific intent to kill. Commonwealth v. Anderson, 650 A.2d 20, 24

         (Pa. 1994). Like any element ofa crime, the Commonwealth may prove intent using circumstantial

         evidence: "A specific intent to kill can be inferred from the circumstances surrounding an unlawful



                                                            4
"I,• I ....




              killing. Because a person generally intends the consequences of his act, specific intent to kill may

              be inferred from the fact that the accused used a deadly weapon to inflict injury to a vital part of

              the victim's body." Commonwealth v. Sattazahn, 631 A.2d 597, 602 (Pa. Super. 1993). Here,

              defendant silently crept up behind the unsuspecting Ms. Rohman as she was walking back to her

              car after the fistfight had ended.    Defendant executed the surprise attack not by stabbing Ms.

              Rohman once, but at least twelve times. Moreover, defendant stabbed the victim in vital areas of

              her body, including her head and neck. The totality of these circumstances was certainly sufficient

              to allow the Court to infer defendant's specific intent to kill.

                 Ill.      CONCLUSION

                        For all of the reasons herein, defendant's judgments of sentence should be affirmed.




                                                                                  BY THE COURT:


                                                                                    ?t_�
                                                                                  ifuNNA M.    WOELPPER, J.




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