J-S09012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    STEVEN PHILIP MARTI,                       :
                                               :      No. 720 MDA 2017
                       Appellant               :

            Appeal from the Judgment of Sentence February 23, 2017
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0004635-2015


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                 FILED MARCH 26, 2018

        Appellant, Steven Philip Marti, appeals from the judgment of sentence

imposed after his jury conviction of simple assault and intimidation of a

witness.1, 2 Counsel has filed a 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.



____________________________________________


*Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2701(a)(1) and 4952(a)(2), respectively.

2The trial court also convicted Appellant of summary harassment. See 18
Pa.C.S.A. § 2709(a)(1). No sentence was imposed on this conviction. (See
N.T. Sentencing, 2/23/17, at 34).
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      We take the following factual and procedural background from our

independent review of the certified record. Trial in this matter commenced on

January 3, 2017.     At trial, Katelyn Lynch, Appellant’s former girlfriend,

testified that, on the night of the subject incident, June 16, 2015, she and

Appellant were drinking at a bar in Hellam Township. Although the two argued

while at the establishment, and Lynch “had a really bad feeling,” they left

together to go home when it closed. (N.T. Trial, 1/04/17, at 113; see id. at

111-12).

      On arriving home, the argument resumed, and Appellant stated he

would stay at his mother’s. (See id. at 116). He began packing, but then

“everything started to escalate.” (Id.). He “got in [Lynch’s] face[,]” stating

he would not leave until they talked. (Id.; see id. at 117). When she replied

she did not feel like talking, Appellant grabbed the apartment keys from a

lanyard around Lynch’s neck, threw her cell phone, and shoved her onto the

couch. (See id. at 117-18). Lynch pulled her knees up, bringing them to her

chest, as Appellant started to come at her. (See id. at 119). Lynch could

feel Appellant’s fingertips on her neck, but before he could go any further,

their dog bit him in the leg, allowing Ms. Lynch the opportunity to get up and

attempt to leave. (See id. at 121-22). However, before she could escape,

Appellant pushed Ms. Lynch into a closet door, breaking it, and causing her to

fall into it. (See id. at 123-24). As she and Appellant struggled, he hit her in




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the back of the head, she fell to the floor, and he punched her in the mouth.

(See id. at 125-28).

      Thereafter, Appellant took Lynch to the bathroom to clean her up so he

could inspect her wounds.      (See id. at 129-30).     Lynch repeatedly asked

Appellant to call 911 so that she could get medical care for her injuries, but

he refused to do so unless she agreed to tell a false version of events. (See

id. at 130-31). Because she knew it was the only way Appellant would call

911, Ms. Lynch agreed to lie about what had transpired. (See id. at 131).

Appellant remained in her presence when the police and ambulance crews

arrived, and told them his version of the “accident.” (Id. at 132). Because

Appellant rode along in the ambulance on the way to the hospital, Lynch

testified she was afraid to tell the medical personnel the truth about what

happened. (See id. at 133). Once Lynch was in the emergency room and

away from Appellant, she revealed what actually transpired. (See id. at 134).

      Dr. Lorie Piccoli, the emergency room doctor who treated Lynch,

observed a laceration to the back of her head, a disruption of her central

incisors (teeth pushed in), and swelling of her lips. (See id. at 140, 142-44).

A CT scan confirmed the injury to Lynch’s teeth, and revealed a fracture of

her maxilla (the bone above the upper lip). (See id. at 144). Dr. Piccoli

testified that these injuries result in chronic pain, sensitivity to heat and cold,

disfigurement, scarring, and headaches. (See id. at 146).




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        Appellant elected to testify on his own behalf.        (See id. at 254).

According to his version of events, after he and Ms. Lynch left the bar on June

16, 2015, she began punching him in the shoulder on the drive home. (See

id. at 259).     After arriving at the residence, Appellant went inside to get

clothes so that he could spend the night at his mother’s house. (See id. at

260-61). When he tried to leave, Ms. Lynch blocked him from doing so. (See

id. at 265). Thereafter, Ms. Lynch fell over the dog, hitting her head on the

doorknob and a piece of furniture. (See id. at 265, 269). Appellant testified

that he then voluntarily called 911 so that Ms. Lynch could get medical

attention. (See id. at 269). On cross-examination, Appellant conceded that,

before Lynch kicked him, she was on the couch and he was standing, requiring

her to get up, beat him to the front door, and block him from leaving. (See

id. at 275).

        At the conclusion of a trial, the jury convicted Appellant of simple assault

and intimidation of a witness, and found him not guilty of aggravated assault.3

On February 23, 2017, the trial court sentenced Appellant to an aggregate

term of not less than fifty-four nor more than 108 months’ incarceration. The

trial court denied Appellant’s post-sentence motion, and he timely appealed.4


____________________________________________


3   18 Pa.C.S.A. § 2702(a)(1).

4 Appellant timely filed his statement of errors complained of on appeal on
July 20, 2017, pursuant to the court’s order and grant of extensions. See
Pa.R.A.P. 1925(b). The trial court filed an opinion on November 8, 2017.
See Pa.R.A.P. 1925(a).

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On December 18, 2017, counsel filed a petition for leave to withdraw and an

Anders brief on the basis that the appeal is frivolous.         Appellant has not

responded.

     Before reaching Appellant’s issues, we must consider counsel’s request

to withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

     The standard of review for an Anders brief is well-settled.

     Court-appointed counsel who seek to withdraw from representing
     an appellant on direct appeal on the basis that the appeal is
     frivolous must:

                   (1) petition the court for leave to withdraw
             stating that, after making a conscientious examination
             of the record, counsel has determined that the appeal
             would be frivolous; (2) file a brief referring to anything
             that arguably might support the appeal but which
             does not resemble a “no-merit” letter or amicus curiae
             brief; and (3) furnish a copy of the brief to the
             defendant and advise the defendant of his or her right
             to retain new counsel or raise any additional points
             that he or she deems worthy of the court’s attention.

Id. (citations and quotation marks omitted).        Further, our Supreme Court

ruled in Santiago, supra, that Anders briefs must contain “a discussion of

counsel’s reasons for believing that the client’s appeal is frivolous[.]”

Santiago, supra at 360.

     Instantly, counsel’s Anders brief and application to withdraw comply

with the applicable technical requirements and reveal that he has made “a

conscientious examination of the record [and] determined that the appeal

would be frivolous[.]” Lilley, supra at 997 (citation omitted). Additionally,

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the record establishes that counsel served Appellant with a copy of the Anders

brief and application to withdraw, and a letter of notice, which advised

Appellant of his right to retain new counsel or to proceed pro se and raise

additional issues to this Court. See id.; (see also Petition to Withdraw as

Counsel, 12/18/17, Exhibit A, at 1). Further, the application and brief cite “to

anything that arguably might support the appeal[.]” Lilley, supra at 997

(citation omitted); (see also Anders Brief, at 11-12, 17-25). As noted by

our Supreme Court in Santiago, the fact that some of counsel’s statements

arguably support the frivolity of the appeal does not violate the requirements

of Anders. See Santiago, supra at 360-61.

      Having concluded that counsel’s petition and brief comply with the

technical Anders requirements, we must “conduct [our] own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.”    Lilley, supra at 998 (citation

omitted).

      The Anders brief raises three questions for our review:

      I.    [Whether t]he trial court erred in grading Appellant’s
      intimidation of witness conviction as a felony when the jury
      acquitted Appellant of the triggering offense of felony aggravated
      assault[?]

      II.   [Whether t]he evidence was insufficient to convict Appellant
      beyond a reasonable doubt of intimidation of witness because the
      Commonwealth failed to prove Appellant intended to intimidate
      the victim into refraining from reporting, or providing false
      information, about the assault[?]




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      III. [Whether t]he evidence was insufficient to convict Appellant
      beyond a reasonable doubt of simple assault because the
      Commonwealth failed to rebut Appellant’s claim of justification[?]

(Anders Brief, at 5).

      The standard of review for Appellant’s first issue is well-settled:

            The proper grading of a criminal offense is an issue of
      statutory interpretation and implicates the legality of the sentence
      imposed. . . . The interpretation of a statute is a pure question of
      law, and therefore our standard of review is de novo and our scope
      of review is plenary.

Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super. 2013), appeal

denied, 85 A.3d 482 (Pa. 2014) (citations omitted).

      Section 4952 of the Crimes Code provides, in pertinent part, that the

offense of intimidation of a witness or victim “is a felony of the first degree if

a felony of the first degree . . . was charged in the case in which the actor

sought to influence or intimidate a witness or victim as specified in this

subsection.” 18 Pa.C.S.A. 4952(b)(2) (emphasis added).

      Instantly, the Commonwealth charged Appellant with aggravated

assault as a felony of the first degree.    (See Information, 8/07/15, at 1).

Appellant maintains, however, that because the jury acquitted him of

aggravated assault, the trial court erred in grading his intimidation of a

witness conviction as a felony pursuant to 18 Pa.C.S.A. 4952(b)(2).          (See

Anders Brief, at 17-19). This issue lacks merit.

      In Felder, supra, “Felder . . . argue[d] that because the jury hung on

the aggravated assault charge and it was nolle prossed by the Commonwealth


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before sentencing, application of subsection 4952(b)(2) was improper[.]

Felder, supra at 516 (record citation omitted). This Court rejected Felder’s

argument, observing:

                 A first-degree felony was charged in this case, and thus
          the trial court properly graded Felder’s conviction for
          witness/victim intimidation as a first-degree felony pursuant to
          subsection 4952(b)(2). Felder’s alternative interpretation of this
          subsection would require us to insert additional language into the
          statute, namely that the first-degree felony charge “continued to
          exist in the case at the time of sentencing.” Nothing in section
          4952(b)(2) suggests that the legislature intended such a result.
          To the contrary, the statute’s focus on the most serious crime
          charged makes eminent sense, since the relevant charge is the
          most serious one a criminal defendant attempted to escape by use
          of intimidation.

Id. at 517 (emphasis in original).

          Therefore, applying the foregoing reasoning to this case, we conclude

that the trial court properly sentenced Appellant of witness intimidation graded

as a felony of the first degree. See id. Appellant’s first issue does not merit

relief.

          In his second issue, Appellant argues that “the Commonwealth failed to

present sufficient evidence to prove that he intended to intimidate the victim

from reporting or providing false information about the assault.” (Appellant’s

Brief, at 19; see id. at 19-21). This issue does not merit relief.

                A claim challenging the sufficiency of the evidence is a
          question of law. Evidence will be deemed sufficient to support the
          verdict when it establishes each material element of the crime
          charged and the commission thereof by the accused, beyond a
          reasonable doubt. Where the evidence offered to support the
          verdict is in contradiction to the physical facts, in contravention to
          human experience and the laws of nature, then the evidence is

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      insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. McClellan, ___ A.3d ___, 2018 WL 560762, at *2 (Pa.

Super. filed Jan. 26, 2018) (citation omitted). “Furthermore, the trier of fact

. . . is free to believe, all, part, or none of the evidence presented when making

credibility determinations. In deciding a sufficiency of the evidence claim, this

[C]ourt may not reweigh the evidence and substitute our judgment for that of

the fact-finder.” Id. (citations omitted).

      Section 4952(a) of the Crimes Code provides, in pertinent part:

      A person commits [the] offense [of intimidation of a witness or
      victim] if, with the intent to or with the knowledge that his conduct
      will obstruct, impede, impair, prevent or interfere with the
      administration of criminal justice, he intimidates or attempts to
      intimidate any witness or victim to . . . [g]ive any false or
      misleading information or testimony relating to the commission of
      any crime to any law enforcement officer, prosecuting official or
      judge.

18 Pa.C.S.A. § 4952(a)(2). “The crime is committed if one, with the necessary

mens rea, attempts to intimidate a witness or victim. . . . The Commonwealth

is not required to prove mens rea by direct evidence.           Frequently such

evidence is not available.   In such cases, the Commonwealth may rely on

circumstantial evidence.” Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa.

Super. 2016), appeal denied, 161 A.3d 791 (Pa. 2016) (citation, emphasis,

and quotation marks omitted).




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      In the present case, the Commonwealth provided evidence that, after

Appellant assaulted Lynch, he would only call for medical assistance if she

agreed to lie to authorities by telling them his version of events. From this

evidence, the jury could reasonably infer that Appellant intimidated Lynch with

the intent that she give false information to authorities. See id.; see also 18

Pa.C.S.A. § 4952(a)(2).     Hence, the evidence was sufficient to support

Appellant’s conviction of intimidation of a witness or victim. See McClellan,

supra at *2. Appellant’s second issue lacks merit.

      In his third issue, Appellant maintains that the evidence was insufficient

to convict him of simple assault where “the Commonwealth failed to rebut his

claim of [j]ustification[.]” (Anders Brief, at 21; see id. at 21-25). This claim

does not merit relief.

      Section 505 of the Crimes Code provides, in pertinent part: “The 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.A. § 505(a). “When an accused raises a self-defense

claim, the Commonwealth must prove beyond a reasonable doubt that the

defendant’s acts were not justifiable self-defense.”      Commonwealth v.

Hammond, 953 A.2d 544, 559 (Pa. Super. 2008), appeal denied, 964 A.2d

894 (Pa. 2009) (citation omitted).

            The Commonwealth sustains this burden if it establishes at
      least one of the following: 1) the accused did not reasonably

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      believe that he was in danger of death or serious bodily injury; or
      2) the accused provoked or continued the use of force; or 3) the
      accused had a duty to retreat and the retreat was possible with
      complete safety. It remains the province of the jury to determine
      whether the accused’s belief was reasonable, whether he was free
      of provocation, and whether he had no duty to retreat.

Id. (citation omitted). “Although the Commonwealth is required to disprove

a claim of self-defense . . . a jury is not required to believe the testimony of

the defendant who raises the claim.” Commonwealth v. Houser, 18 A.3d

1128, 1135 (Pa. 2011), cert. denied, 565 U.S. 1247 (2012) (citation omitted).

      Here, Appellant testified that Lynch punched him in the shoulder on the

way home from the bar, and that he pushed her in response to her pushing

and kicking him and blocking his retreat from the residence, a version of

events at odds with Lynch’s testimony. In assessing credibility, the jury was

free to believe, all, part or none of the testimony, and was not required to

believe Appellant. See id.; see also McClellan, supra, at *2.

      Further, even assuming arguendo that Appellant’s version of events

were true, he admitted that, before Lynch struck him, she had to get up from

the couch, beat him to the front door, and block him from leaving. Based on

this testimony, the jury could properly find that the Commonwealth

established Appellant did not reasonably believe he was in danger of death or

serious bodily injury. See Hammond, supra at 559.

      Accordingly, viewing the evidence in the light most favorable to the

Commonwealth, it is sufficient to support Appellant’s conviction of simple




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assault, where the evidence established that he did not act in justifiable self-

defense. See McClellan, supra, at *2. Appellant’s third issue lacks merit.

      Therefore, based on our own independent review of the record, we

conclude that Appellant’s claims are “wholly frivolous” and do not merit relief.

Lilley, supra at 998 (citation omitted). Additionally, we find no other non-

frivolous issues that would merit relief.

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



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/26/2018




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