J-S60042-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellee               :
                                        :
                   v.                   :
                                        :
JAVED TUKHI,                            :
                                        :
                 Appellant              :     No. 3272 EDA 2015

        Appeal from the Judgment of Sentence September 29, 2015
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006472-2014

BEFORE:    SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED August 8, 2017

     This case returns to this Court after we remanded it to the trial court

in Commonwealth v. Tukhi, 149 A.3d 881 (Pa. Super. 2016). 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). Upon

review, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

     The factual and procedural history of this matter was summarized

thoroughly in Tukhi, 149 A.3d at 884-85. Briefly, Appellant was convicted

of aggravated assault, simple assault, and possession of an instrument of

crime, after an altercation with Joseph Brandon at Crown Fried Chicken in

Philadelphia. In Tukhi, we concluded the evidence was sufficient to sustain

Appellant’s convictions, but we denied counsel’s petition to withdraw



*Retired Senior Judge assigned to the Superior Court.
J-S60042-16


pursuant to Anders and Santiago. Specifically, we ordered counsel to file

either a new Anders brief or an advocate’s brief on the issue of “whether

Appellant should be entitled to relief on the basis that he was not advised

adequately of his post-sentence rights following sentencing.” Tukhi, 149

A.3d at 889.    On February 17, 2017, counsel for Appellant filed a new

petition to withdraw and brief pursuant to Anders and Santiago, and on

June 19, 2017, the Commonwealth filed a response.          This matter is now

ready for disposition.

      Because counsel has filed an Anders brief and a petition to withdraw

as counsel, the following principles guide our review of this matter.

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are



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        non-frivolous issues, we will deny the petition and remand for
        the filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

        [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.

Santiago, 978 A.2d at 361.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel once again has substantially

complied with the technical requirements set forth above.1       Therefore, we

now have the responsibility “‘to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.

Super. 2015) (quoting Santiago, 978 A.2d at 354 n.5).

        This Court directed counsel specifically to address “whether Appellant

should be entitled to relief on the basis that he was not advised adequately



1
    Appellant has not responded to counsel’s petition to withdraw.


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of his post-sentence rights following sentencing.” Tukhi, 149 A.3d at 889.

In response, counsel acknowledges that the instructions provided by trial

counsel and the trial court to file a post-sentence motion were misleading

and resulted in a “court breakdown.” Anders Brief at 35. Counsel further

recognizes   that   two    claims,     a   weight-of-the-evidence     claim      and   a

discretionary-aspects-of-sentencing claim, are waived for review when no

post-sentence motion is filed. Thus, counsel suggests that because of the

“court   breakdown,”      we   “find   that   the   waiver   is   excused   in    these

circumstances and address that claim on the merits.” Id.

      We agree with counsel’s analysis in this regard, and will address the

underlying issues as if they had been preserved in a post-sentence motion.

See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)

(“The courts of this Commonwealth have held that a court breakdown

occurred in instances where the trial court, at the time of sentencing, either

failed to advise Appellant of his post-sentence and appellate rights or

misadvised him.”); Commonwealth v. Malovich, 903 A.2d 1247, 1252

(Pa. Super. 2006) (“Given that Appellant was unaware of the need to

preserve claims in a motion for reconsideration, we find that he has not

waived those claims on appeal.”).

      Counsel presents two issues that arguably support this appeal:

      [1.] Was the verdict against the weight of the evidence and so
      contrary to the evidence that it shocks one’s sense of justice



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      with respect to the convictions for aggravated assault, simple
      assault, and possessing an instrument of crime?

      [2.] Was the sentence imposed upon [Appellant] by the [trial]
      court manifestly excessive?

Anders Brief at 8 (answers below omitted).

      As Appellant’s first issue challenges the weight of the evidence to

support his convictions, we begin with our well-settled standard of review.

      The decision of whether to grant a new trial on the basis of a
      challenge to the weight of the evidence is necessarily committed
      to the sound discretion of the trial court due to the court’s
      observation of the witnesses and the evidence. A trial court
      should award a new trial on this ground only when the verdict is
      so contrary to the evidence as to shock one’s sense of justice. A
      motion alleging the verdict was against the weight of the
      evidence should not be granted where it merely identifies
      contradictory evidence presented by the Commonwealth and the
      defendant. Our review on appeal is limited to determining
      whether the trial court abused its discretion in denying the
      motion for a new trial on this ground.

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted). “Not merely an error in judgment, an abuse of discretion occurs

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.” Commonwealth v. Handfield, 34

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29

A.3d 3, 6 (Pa. Super. 2011)).

      As counsel acknowledges, “[t]he [c]ourt found … Brandon credible

regarding the manner in which he sustained his injury at the hands of



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[Appellant].” Appellant’s Brief at 31 (citing Trial Court Opinion, 1/11/2016,

at 4). In a non-jury trial, it is the trial court’s responsibility to weigh the

evidence. See Commonwealth v. Safka, 141 A.3d 1239, 1249 (Pa. 2016).

Accordingly, we agree with counsel that any issue with respect to the weight

of the evidence is frivolous under these circumstances.           Accordingly,

Appellant is not entitled to relief on this basis.

      We now turn to Appellant’s challenge to the discretionary aspects of

his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We 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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533

(Pa. Super. 2006)).

      Appellant’s 2119(f) statement presents the issue that Appellant’s

sentence is excessive under the circumstances. Appellant’s Brief at 43.

         The determination of whether a substantial question exists
         must be made on a case-by-case basis. It is only where


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         an aggrieved party can articulate clear reasons why the
         sentence issued by the trial court compromises the
         sentencing scheme as a whole that we will find a
         substantial question and review the decision of the trial
         court.   This [C]ourt has been inclined to find that a
         substantial question exists where the appellant advances a
         colorable argument that the sentencing judge’s actions
         were either: (1) inconsistent with a specific provision of
         the Sentencing Code; or (2) contrary to the fundamental
         norms underlying the sentencing process.

         Also, a bald allegation that a sentence is excessive does
         not raise a substantial question.

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations

omitted).

      Because a bald allegation of excessiveness does not raise a substantial

question, we agree with counsel that this issue is frivolous. Moreover, we

point out that Appellant was sentenced to nine to 23 months of house arrest

to be followed by one year of probation. The trial court offered the following

in support of that sentence.

      [T]his [conduct] is not something to be taken lightly.
      [Appellant] should be accountable for his actions. The only
      reason he’s not going to prison is because he’s being otherwise
      productive in his work and going to school. But he needs to
      know that he can’t do something like this to people, even if they
      are homeless or annoying or whatever other undesirable things
      to him. I hope he knows how lucky he is.

N.T., 9/29/2015, at 10-11.

      Based on the foregoing, we agree with counsel that any challenge to

the discretionary aspects of Appellant’s sentence is frivolous. Moreover, we

have conducted “a full examination of the proceedings” and conclude that


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“the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus,

we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/8/2017




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