J-S30035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANK JUSTINIANO

                            Appellant                  No. 837 EDA 2015


            Appeal from the Judgment of Sentence March 17, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001500-2013


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

MEMORANDUM BY JENKINS, J.:                              FILED May 11, 2016

        Appellant Frank Justiniano appeals from the judgment of sentence

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

bench trial convictions for aggravated assault, attempt of murder in the first

degree, criminal conspiracy and possession of an instrument of crime

(“PIC”).1 After review, we affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

On October 24, 2012, Christopher Corisdeo (“Victim”), who was high on PCP

and swinging his arms back and forth, struck Myleidi Rodriguez as he walked

past her on East Dauphin Street. N.T., 12/03/2014, at 38. In response to

this, Appellant and the four other males that accompanied Ms. Rodriguez

____________________________________________


1
    18 Pa.C.S. §§ 2702(a)(1), 901, 2502(a), 903(c), and 907(a), respectively.
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began to punch and kick Victim. Id. at 39-40. The group dragged Victim to

the lot on the corner of the street, removed his clothing, and continued to

kick and punch him. Id. at 41-43. Appellant then picked up a cement block

and dropped or threw it onto Victim’s face.            Id.    at 13, 48, 115.    Victim

survived, endured reconstructive surgery, and now suffers from memory

loss, speech problems, dizziness, depression, and anxiety. Sentencing N.T.,

3/17/2015, at 15-16.

        On December 4, 2014, after a bench trial, the trial court convicted

Appellant of the aforementioned crimes.              On March 17, 2015, the court

sentenced     Appellant     consecutively      to   20-40    years’   incarceration   for

attempted murder and 10-20 years’ incarceration for criminal conspiracy.

The court imposed a concurrent sentence of 1-2 years’ incarceration for

PIC.2

        On April 14, 2015, Appellant filed a timely notice of appeal. On May 7,

2015, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant’s




____________________________________________


2
    Appellant’s aggravated assault conviction merged for sentencing purposes.




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counsel filed a statement of intent to file an Anders3 brief pursuant to

Pa.R.A.P. 1925(c)(4) on May 26, 2015.4

       On November 4, 2015, Appellant’s counsel filed a petition for leave to

withdraw along with an Anders brief.

       As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders and Commonwealth v. Santiago, 978

A.2d 349 (Pa.2009).         Prior to withdrawing as counsel on a direct appeal

under Anders, counsel must file a brief that meets the requirements

established by our Supreme Court in Santiago. The brief 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.

Santiago, 978 A.2d at 361.             Counsel must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her right to “(1) retain new counsel to pursue the appeal;

(2) proceed pro se on appeal; or (3) raise any points that the appellant
____________________________________________


3
  Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
4
  On May 15, 2015, this Court dismissed Appellant’s appeal for failure to
comply with Pa.R.A.P. 3517. On May 19, 2015, Appellant filed an application
to reinstate his appeal, which this Court granted on June 2, 2015. Our June
2, 2015 order vacated our order of May 15, 2015.



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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).        Substantial

compliance with these requirements is sufficient.       Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the

antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in

fact, wholly frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246

(Pa.Super.2006).

      Here, counsel filed a petition for leave to withdraw as counsel along

with an Anders brief and a letter advising Appellant of his right to obtain

new counsel or proceed pro se to raise any points he deems worthy of the

court’s attention in addition to the one raised in the Anders brief.      The

petition states that counsel determined there were no non-frivolous issues to

be raised on appeal, notified Appellant of the withdrawal request, supplied

him with a copy of the Anders brief, and sent him a letter explaining his

right to proceed pro se or with new, privately-retained counsel to raise any

additional points or arguments that Appellant believed had merit.      In the

Anders brief, counsel provides a summary of the facts and procedural

history of the case with citations to the record, refers to evidence of record

that might arguably support the issue raised on appeal, provides citations to

relevant case law, and states his conclusion that the appeal is wholly

frivolous and his reasons therefor.     See Anders Brief, at 5-8, 10-16.

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Accordingly,   counsel   has   substantially   complied     with   the    technical

requirements of Anders and Santiago.

      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issues raised

in the Anders brief. The only issue listed is as follows:

         IS [APPELLANT’S] APPEAL FRIVOLOUS SUCH                    THAT
         COUNSEL SHOULD BE PERMITTED TO WITHDRAW?

Anders Brief at 4. This issue reflects counsel’s request to withdraw, which

we grant herein after a discussion of Appellant’s other underlying issues.

      In the Anders brief, counsel submits that any challenges to the

sufficiency of the evidence or the discretionary aspects of Appellant’s

sentence would fail. We agree.

      When examining a challenge to the sufficiency of evidence, our

standard 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


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        evidence. Moreover, in applying the above test, the entire
        record must be evaluated and all evidence actually
        received must be considered. Finally, the [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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

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

     Appellant was convicted of the following statutorily defined crimes:

        § 2702. Aggravated assault

           (a) Offense defined.--A person is guilty of aggravated
           assault if he:

              (1) 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. § 2702.

        § 903. Criminal conspiracy

        (c) Conspiracy with multiple criminal objectives.--If a
        person conspires to commit a number of crimes, he is
        guilty of only one conspiracy so long as such multiple
        crimes are the object of the same agreement or
        continuous conspiratorial relationship.

18 Pa.C.S. § 903(c).

        § 907. Possessing instruments of crime

        (a) Criminal instruments generally.--A person commits
        a misdemeanor of the first degree if he possesses any
        instrument of crime with intent to employ it criminally.



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18 Pa.C.S. § 907.

        § 901. Criminal attempt

        (a) Definition of attempt.--A person commits an
        attempt when, with intent to commit a specific crime, he
        does any act which constitutes a substantial step toward
        the commission of that crime.

18 Pa.C.S. § 901.

        § 2502. Murder

        (a) Murder of the first degree.--A criminal homicide
        constitutes murder of the first degree when it is committed
        by an intentional killing.

18 Pa.C.S. § 2502(a).

     Here, viewing all of the evidence in the light most favorable to the

Commonwealth, there was sufficient evidence for the court to find that

Appellant, along with several others, brutally beat Victim and personally

smashed a concrete block on his face. Thus, there was sufficient evidence to

enable the fact-finder to find every element of Appellant’s crimes beyond a

reasonable doubt. We agree with counsel that a challenge to the sufficiency

of the evidence would be frivolous.

     Similarly, any challenge to the discretionary aspects of Appellant’s

sentence would fail.

     Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary




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challenge, an appellant must invoke this Court’s jurisdiction by satisfying the

following four-part test:

      (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.

Id.

      Here, Appellant did not properly preserve the issue at sentencing or in

a motion to reconsider or modify sentence. Thus, he has not invoked this

Court’s jurisdiction, and we cannot address Appellant’s challenge to the

discretionary aspects of his sentence.

      Counsel is correct that claims of ineffective assistance of counsel are

generally to be deferred to collateral review. See Commonwealth              v.

Holmes, 79 A.3d 562, 576 (Pa.2013).

      Further, after an independent review of the record, we agree with

counsel that this appeal is wholly frivolous.

      Judgment of sentence affirmed.            Counsel’s petition to withdraw

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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