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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHAD DOUGLAS LIEGEY                        :
                                               :
                       Appellant               :   No. 1741 WDA 2017

           Appeal from the Judgment of Sentence October 24, 2017
                 In the Court of Common Pleas of Elk County
             Criminal Division at No(s): CP-24-CR-0000214-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 7, 2018

       Chad Douglas Liegey appeals from the judgment of sentence of 90 days

of probation, which was imposed on October 24, 2017, in the Elk County Court

of Common Pleas, following his conviction by the trial court for the summary

charge of harassment – subject other to physical contact.1 On that same day,

a jury acquitted Liegey of the misdemeanor counts of recklessly endangering

another person (“REAP”) and simple assault.2 Contemporaneously with this

appeal, appellate counsel has filed a petition to withdraw and an Anders3

brief, stating the appeal is wholly frivolous. After careful review, we affirm

and grant counsel’s petition to withdraw.


____________________________________________


1   18 Pa.C.S. § 2709(a)(1).
2   18 Pa.C.S. §§ 2705 & 2701(a)(1), respectively.
3   Anders v. California, 386 U.S. 738 (1967).
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      On July 24, 2016, in the early morning, at a residence located in

Benezette, Elk County, Liegey hit Sherri McCloskey three times: once on the

left side of her face, once on the right side of her face, and once on her

forehead. Trial Court Opinion, 1/22/2018, at 1-2, citing N.T., 10/24/2017, at

10.

      During Liegey’s trial on October 24, 2017, the Commonwealth

introduced seven photographs of McCloskey after the incident. Id. at 2, citing

Commonwealth Exs. 1-7. The photographs depict a wound on McCloskey’s

forehead, bruising around her eyes, and other contusions on her face. Id.,

citing Commonwealth Exs. 1-7.        Investigating Pennsylvania State Police

Trooper Tyler J. Thompson testified he observed “a laceration in the middle of

[McCloskey’s] forehead” and “bruising on her forehead” when he “arrived.”

N.T., 10/24/2017, at 49.

      Liegey testified in his own defense that, after McCloskey “punched” him

“in the cheek[,]” he “hit her back just out of – defense[.]” N.T., 10/24/2017,

at 80; see also id. at 90 (“She hit me and I hit her back”); Trial Court Opinion,

1/22/2018, at 2. He continued that he “hit her one time.” N.T., 10/24/2017,

at 90; see also id. at 92 (“I hit her one time”; “I hit her once”); Trial Court

Opinion, 1/22/2018, at 2. Liegey also introduced three photographs depicting

scratches and a contusion on his arms following the incident; the photographs

do not show Liegey’s face. Id., citing Def. Exs. A-C.




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       Liegey was sentenced immediately after his conviction for harassment.

N.T., 10/24/2017, at 126.          No post-sentence motions were filed, but this

appeal followed.4

       On February 15, 2018, appellate counsel sent a letter to Liegey,

informing Liegey that he intended to file a petition for leave to withdraw. The

next day, appellate counsel filed an Anders Brief, in which he presented the

following issues:

       (1) Whether the trial court erred in finding [Liegey] guilty of the
       summary offense of Harassment (18 Pa.C.S.[ §] 2709(a)(1)), as
       the verdict was against the weight of the evidence where the jury
       found [Liegey] not guilty of all of the misdemeanor offenses?

       (2) Whether the evidence was sufficient to support the verdict
       of    guilty   to    the charge      of    Harassment     (18
       Pa.C.S.[ §] 2709(a)(1))?

Anders Brief at 3.        That same day, appellate counsel filed a petition to

withdraw. Liegey did not file a pro se response to that petition. On April 3,

2018, the Commonwealth sent a letter to this Court stating that it did not

intend to file a responsive brief.

       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 for counsel to withdraw from an appeal pursuant to
       Anders, certain requirements must be met, and counsel must:

____________________________________________


4  On November 17, 2017, the trial court ordered Liegey to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days of the date of the order, and Liegey complied on November 27,
2017. On January 22, 2018, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).

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      (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.

Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super. 2017) (internal

brackets, citations, and quotation marks omitted; some formatting).

      Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client:

      Counsel also must provide a copy of the Anders brief to his client.
      Attending the brief must be a letter that advises the client of his
      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. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017)

(citation and internal brackets and quotation marks 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. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en

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

2004)). Finally, “[w]e must also conduct an independent review of the record

to discern if there are any additional, non-frivolous issues overlooked by


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counsel.” In re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017) (citation and

internal quotation marks omitted).

      [T]his review does not require this Court to act as counsel or
      otherwise advocate on behalf of a party. Rather, it requires us
      only to conduct a review of the record to ascertain if on its face,
      there are non-frivolous issues that counsel, intentionally or not,
      missed or misstated. We need not analyze those issues of
      arguable merit; just identify them, deny the motion to withdraw,
      and order counsel to analyze them.

Commonwealth v. Yorgey, 2018 PA Super 136 ¶ 25 (en banc).

      In this appeal, we observe that appellate counsel’s February 15, 2018,

correspondence to Liegey provided a copy of the Anders Brief to Liegey and

advised Liegey of his right either to retain new counsel or to proceed pro se

on appeal to raise any points he deems worthy of the court’s attention.

Further, appellate counsel’s Anders Brief, at 4-6, complies with prevailing law

in that counsel has provided a procedural and factual summary of the case

with references to the record.        Appellate counsel additionally advances

relevant portions of the record that arguably support Liegey’s claims on

appeal.      Id. at 7-8.   Ultimately, appellate counsel cites his reasons and

conclusion that Liegey’s “appeal is frivolous.” Id. at 8-12. Counsel’s Anders

brief and procedures therefore comply with the requirements of Blauser, 166

A.3d at 431, and Schmidt, 165 A.3d at 1006. We thus proceed to conduct

an independent review to ascertain whether the appeal is indeed wholly

frivolous.




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      As a preliminary matter, generally, a challenge to the weight of the

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.

The Rule provides:

      (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)(1)-(3).    “As noted in the comment to Rule 607, 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 it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004).

      The fact that [an a]ppellant included an issue challenging the
      verdict on weight of the evidence grounds in his 1925(b)
      statement and the trial court addressed [the a]ppellant’s weight
      claim in its Pa.R.A.P 1925(a) opinion d[oes] not preserve his
      weight of the evidence claim for appellate review in the absence
      of an earlier motion.

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009); accord In

re Estate of Smaling, 80 A.3d 485, 491 n.2 (Pa. Super. 2013) (en banc)

(“the inclusion of a weight claim in an appellant’s Rule 1925(b) statement did

not preserve his weight of the evidence claim for appellate review in the

absence of an earlier motion, even where the trial court addressed the

appellant’s weight claim in its Pa.R.A.P. 1925(a) opinion”).

      Instantly, Liegey failed to challenge the weight of the evidence before

the trial court in a motion for a new trial. See Pa.R.Crim.P. 607. Rather,



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Liegey raised his weight claim for the first time in his concise statement. See

Sherwood, 982 A.2d at 494; Smaling, 80 A.3d at 491 n.2. Thus, his first

issue on appeal is waived. See Pa.R.Crim.P. 607; Sherwood, 982 A.2d at

494; Smaling, 80 A.3d 485, 491 n.2.

      With respect to Liegey’s challenge to the sufficiency of the evidence,

Liegey contends that his testimony – i.e., he hit McCloskey only once after she

hit him on the cheek -- should have been sufficient to establish self-defense.

Anders Brief at 8; see also N.T., 10/24/2017, at 80, 90, 92; Trial Court

Opinion, 1/22/2018, at 2.

      Our standard of review is as follows:

      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. . . .
      Finally, the trier of fact while passing upon the credibility of
      witnesses . . . , is free to believe all, part or none of the evidence.

Commonwealth v. Fortson, 165 A.3d 10, 14–15 (Pa. Super.) (citation and

internal brackets omitted), appeal denied, 174 A.3d 558 (Pa. 2017).

      Liegey   was   convicted    of   harassment    pursuant    to   18   Pa.C.S.

§ 2709(a)(1): “A person commits the crime of harassment when, with intent

to harass, annoy or alarm another, the person strikes, shoves, kicks or

otherwise subjects the other person to physical contact, or attempts or

threatens to do the same[.]” “An intent to harass may be inferred from the

totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721

(Pa. Super. 2013).

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      With respect to Liegey’s claim of self-defense, “[t]he use of force upon

or toward another person is justifiable when the actor believes that such force

is immediately necessary for the purpose of protecting himself against the use

of unlawful force by such other person on the present occasion.” 18 Pa.C.S.

§ 505(a).

      When a defendant raises the issue of self-defense, the
      Commonwealth bears the burden to disprove such a defense
      beyond a reasonable doubt. While there is no burden on a
      defendant to prove the claim, before the defense is properly at
      issue at trial, there must be some evidence, from whatever
      source, to justify a finding of self-defense.

 Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa. Super. 2006) (citation

omitted).

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

applicable   law,   and   the   well-reasoned     opinion   of   the   Honorable

Richard A. Masson, we conclude that Liegey’s second issue merits no relief.

The trial court opinion comprehensively discusses and properly disposes of

that question, as follows:

      In the case at bar, there is no reasonable doubt that [Liegey]
      struck McCloskey as both she and [he] testified to him striking
      her, albeit a different number of times. McCloskey testified to
      being struck in the face three times and [Liegey] acknowledged
      striking her once in the face in reaction to his purportedly having
      been struck first by her. In addition to their testimony, Trooper
      Thompson testified to his observation of the wound and blood on
      McCloskey. The wound to McCloskey’s forehead is obvious as are
      her blackened eyes and general facial contusions as depicted in
      Commonwealth Exhibits 1 through 7. These photos corroborate
      McCloskey’s testimony that Liegey hit her three times, including
      once on the left side of her face, once on the right side of her face,
      and once in the forehead[. N.T.,] 10/24/[20]17[, at] 10[]). The


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      aforesaid Commonwealth photograph exhibits also discredit the
      testimony of Liegey that he only struck McCloskey once[. N.T.,]
      10/24/[20]17[, at] 80[,] 90[,] 92[].

      The assertion of [Liegey that he] struck McCloskey once in self-
      defense after she purportedly hit him on the cheek was simply not
      believed by the Court, which had the opportunity to observe the
      demeanor and countenance of the witnesses and attribute the
      weight it deemed appropriate to the evidence. The testimony of
      McCloskey that was supported by the other evidence, including
      the demonstrative evidence in the nature of the photographs
      introduced as Commonwealth Exhibits 1 through 7, was found to
      be credible and competent both as to establishing the elements of
      harassment and to demonstrate that [Liegey] did not engage in
      self-defense. The testimony of Liegey was undermined by the
      Defendant Exhibit A, B and C photographs as well, which at best
      depict scratches and a contusion on his arms, but do not show his
      face, let alone any physical evidence that he was struck in the
      face. . . . Any use of force that McCloskey may have employed
      which resulted in marks on the [Liegey]’s arms was provoked by
      [Liegey] by engaging in conduct that showed he intended to cause
      her to be subjected to unlawful force and thus his conduct was not
      justified.

Trial Court Opinion, 1/22/2018, at 2-3. Based on the foregoing, we agree

with the trial court and appellate counsel that the Liegey’s challenge to the

sufficiency of the evidence lacks merit.

      In addition, we have reviewed the certified record consistent with

J.D.H., 171 A.3d at 908, and have discovered no additional arguably

meritorious issues.    Therefore, we grant appellate counsel’s petition to

withdraw and affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.

      Judge Panella joins this memorandum.

      President Judge Gantman concurs in the result.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2018




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