J-S61005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

BRYAN EMERSHAW

                            Appellant                   No. 2086 MDA 2014


            Appeal from the Judgment of Sentence October 2, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003952-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                            FILED NOVEMBER 20, 2015

        Appellant, Bryan Emershaw, appeals from the judgment of sentence

entered October 2, 2014, in the Court of Common Pleas of Luzerne County.

Additionally,    Emershaw’s        court-appointed   counsel,   Caeli   McCormick

Sweigart, Esquire, has filed an application to withdraw as counsel pursuant

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

Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm

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

        During the afternoon on June 15, 2013, John Rogers (“the victim”)

engaged in target practice with a BB gun in the back yard of his residence.

During that time, Emershaw, who was the victim’s neighbor, confronted the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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victim regarding his use of a gun. The victim informed Emershaw that it was

only a BB gun, and the conversation ended. The victim then stored the BB

gun on a shelf in his shed and began to work on a neighbor’s malfunctioning

lawnmower and collect firewood. At this point, the victim observed

Emershaw crossing the lawn in his direction. Emershaw approached the

victim and kicked him. The victim remembers nothing of the attack after

that point.

      Prior to the attack, the victim’s brother, Keith Rogers, was inside the

home he shares with the victim when Emershaw entered the house without

permission. Emershaw, who was acting belligerently, shouted that the victim

had threatened him with a BB gun and advised Rogers that the victim had

better clear the valley in ten days’ time. Fearing for his safety, Rogers locked

the doors and windows of the home after Emershaw had departed. Rogers

then observed the victim struggling to get off the ground in the rear yard.

The victim informed Rogers that Emershaw had assaulted him and was later

treated for multiple facial and rib fractures, a punctured lung, and a brain

hemorrhage. The victim, who had a .219 blood alcohol content level upon

his arrival at the hospital, additionally received treatment for alcohol abuse.

      Emershaw was subsequently arrested and charged with multiple

offenses arising out of the assault. Following a jury trial, Emershaw was




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convicted of simple assault1 and recklessly endangering another person

(REAP),2 in addition to the summary offenses of criminal trespass3 and

harassment.4 The trial court later sentenced Emershaw to one year less one

day to two years less two days in prison. Emershaw thereafter filed a post-

sentence motion, which the trial court denied. This timely appeal followed.

          As noted, Attorney Sweigart has requested to withdraw and has

submitted an Anders brief in support thereof contending that Emershaw’s

appeal is frivolous. The Pennsylvania Supreme Court has articulated the

procedure to be followed when court-appointed counsel seeks to withdraw

from representing an appellant on direct appeal:

            [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 arguably believes 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. Santiago, 978 A.2d 349, 361 (Pa. 2009).

          We note that Attorney Sweigart has substantially complied with all of

the requirements of Anders as articulated in Santiago. Additionally,

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1
    18   Pa.C.S.A.   §   2701(a)(1).
2
    18   Pa.C.S.A.   §   2705.
3
    18   Pa.C.S.A.   §   3503(b.1)(1)(i).
4
    18   Pa.C.S.A.   §   2709(a)(1).



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Attorney Sweigart confirms that she sent a copy of the Anders brief as well

as a letter explaining to Emershaw that he has the right to proceed pro se or

to retain new counsel. A copy of the letter is appended to Attorney

Sweigart’s petition. See Commonwealth v. Daniels, 999 A.2d 5990, 594

(Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005).

       We now proceed to examine the issue set forth in the Anders brief.5

That issue is whether the Commonwealth presented sufficient evidence to

sustain the convictions. We agree with counsel that the Commonwealth

presented sufficient evidence.

       We review a challenge to the sufficiency of the evidence as follows.

              The standard we apply when 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
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5
  Emershaw has not filed a response to Attorney Sweigart’s petition to
withdraw.



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      trier 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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             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.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      The Crimes Code defines simple assault as an “[attempt] to cause or

intentionally, knowingly or recklessly [cause] bodily injury to another.” 18

Pa.C.S.A. § 2701(a)(1). Bodily injury is defined as the “[i]mpairment of

physical condition or substantial pain.” See 18 Pa.C.S.A. § 2301.

      The Crimes Code defines the offense of recklessly endangering another

person as “conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S.A. § 2705.

      “Recklessly” is defined as follows.

      A person acts recklessly with respect to a material element of an
      offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor's conduct
      and the circumstances known to him, its disregard involves a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor's situation.




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18 Pa.C.S.A. § 302(b)(3). Furthermore, 18 Pa.C.S.A. § 2301 defines “serious

bodily injury” 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.”

      A person is guilty of criminal trespass “if, knowing that he is not

licensed or privileged to do so, he enters or remains in any place for the

purpose of: (i) threatening or terrorizing the owner or occupant of the

premises[.]” 18 Pa.C.S.A § 3503(b.1)(1)(i).

      “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.” 18 Pa.C.S.A. § 2709(a)(1).

      We find that the Commonwealth presented sufficient evidence to

sustain each of Emershaw’s convictions. There is no dispute that Emershaw

assaulted the victim and that the victim sustained multiple injuries as a

result of the assault, including facial fractures, multiple cracked ribs, a brain

hemorrhage, and a punctured lung. These injuries, especially those to the

victim’s head and lungs, are clear evidence that Emershaw recklessly

engaged in conduct that placed the victim in danger of serious bodily injury.

Additionally, the victim’s brother, Keith Rogers, testified that Emershaw

entered his residence without permission and that he felt threatened by

Emershaw’s aggressive and belligerent behavior.




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         Although Emershaw argued at trial that the victim threatened him with

the BB gun in manner that caused Emershaw to believe that he needed to

use force to protect himself, the jury was free to disbelieve this version of

the evidence and to resolve any inconsistencies in the testimony. See

Commonwealth v. Manchas, 633 A.2d 618, 624 (Pa. Super. 1993) (it is

within the province of the jury to reconcile inconsistent testimony and to

believe all, part or none of the evidence). The verdict rendered in this case

reflects the jury’s acceptance of the Commonwealth’s version of events,

which are supported by the record, and we will not usurp the jurors’ role as

the sole assessor of credibility. Emershaw’s sufficiency challenge therefore

fails.

         After examining the issues contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

         Judgment of sentence affirmed. Permission to withdraw as counsel is

granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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