J-S48019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ROBBY LEE SHUKER

                            Appellant                     No. 290 MDA 2014


            Appeal from the Judgment of Sentence January 3, 2014
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0006047-2012



BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                             FILED AUGUST 12, 2014



2014 judgment of sentence entered in the Berks County Court of Common

Pleas following his conviction for aggravated assault1 and simple assault.2

                                        Anders3 brief, together with a petition to

withdraw as counsel.          We affirm the judgment of sentence and grant




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1).
2
    18 Pa.C.S. § 2701(a)(1).
3
    Anders v. California, 386 U.S. 738 (1967).
J-S48019-14



        We summarize the facts and procedural history of this case as follows.



involved in a romantic relationship during which they had two children

together. The relationship had ended as of October 6, 2012, and Blair had a

new boyfriend. However, Appellant and Blair remained friends.




11:00 p.m. or 12:00 a.m. with the aid of prescription sleeping pills. Because

she was not feeling well, Blair took three of her sleeping pills, although her

prescribed dosage was only one pill.

        At 2:30 a.m., Blair and Kehr were sleeping together in the master

bedroom when they were awakened by Appellant            who had keys to the

house     rattling the bedroom doorknob. Appellant began to yell, demanding

that Blair open the door. Blair told Appellant she was not going to answer

the door, and that he needed to leave.

        Instead of leaving, Appellant kicked in the door and entered the

bedroom, yelling and cursing.      Appellant pushed Blair onto the bed and



fought for a period of time. Once they separated, Appellant walked towards

the living room while Kehr exited toward the kitchen with his cell phone and

called 911.



Appellant followed and began choking Blair in the upstairs bedroom. Luckily,

                                       -2-
J-S48019-14



                                                                      t off Blair and

escorted him down the steps to the lower level.              Later, the Pennsylvania

State Police arrived and arrested Appellant.

       The   Commonwealth         charged      Appellant   with   burglary,   terroristic

threats, simple assault (two counts), criminal mischief, aggravated assault,

and criminal trespass.       Following a jury trial conducted on November 13,

2013, Appellant was convicted of simple assault (2 counts) and aggravated

assault.4 On January 3, 2014, the trial court sentenced Appellant to five (5)

to twenty (20) years of imprisonment on the aggravated assault conviction

and a concurrent sentence of one (1) to two (2) years of imprisonment for

the simple assault convictions. Appellant filed a post-sentence motion for a

new trial based upon a weight of the evidence claim, which the trial court



                                                                                Anders

brief. The trial court filed its Pa.R.A.P. 1925(a) opinion on March 25, 2014,

which indicated the court had reviewed the record and concurred that no

meritorious issues existed for direct appeal.




____________________________________________


4
    The trial court entered a judgment of acquittal at the close of the

The jury found Appellant not guilty of the charge of terroristic threats. The
trial court found Appellant guilty of criminal mischief, a summary offense.




                                           -3-
J-S48019-14




seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.5               Before



                                                   Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).

        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

                                                          eal 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



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

                                          tion in addition to the points raised by

                                    Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super.2007).         Substantial compliance with these requirements is
____________________________________________


5
    978 A.2d 349 (Pa.2009).



                                           -4-
J-S48019-14



sufficient.    Commonwealth        v.   Wrecks,    934    A.2d   1287,   1290

(Pa.Super.2007).

been met, this Court must then make an independent evaluation of the



Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

      Instantly, counsel filed a Petition to Withdraw as Counsel. The petition

states counsel drafted and filed an Anders brief after determining that there

were no non-frivolous issues to be raised on appeal.      The petition further

explains that counsel notified Appellant of the withdrawal request, supplied

him with a copy of the Anders brief, and sent Appellant 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. See

Letter to Appellant, May 9, 2014, attached to Petition to Withdraw as

Counsel. 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.         Accordingly, counsel has

substantially complied with the 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 issue of

arguable merit raised in the Anders brief:




                                     -5-
J-S48019-14


      1.    Whether the guilty verdict for aggravated assault was
      contrary to the weight of the evidence, where the inconsistent
      and unreliable testimony of Stacey Blair was the only direct
      evidence linking [Appellant] to the crimes, where she was under
      the influence of a controlled substance in that she ingested more
      than the prescribed dose of prescription sleeping pills due to a
      head cold and was dazed and confused about the events of
      October 6, 2012, and no additional eyewitness testimony or
                                                                  n] the
      crime charged.

Anders Brief, p. 7.

      Our review of this issue is governed by the following standard:

             A motion for new trial on the grounds that the verdict is
      contrary to the weight of the evidence, concedes that there is
      sufficient evidence to sustain the verdict. Thus, the trial court is
      under no obligation to view the evidence in the light most
      favorable to the verdict winner. An allegation that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. A trial judge
      must do more than reassess the credibility of the witnesses and
      allege that he would not have assented to the verdict if he were
      a juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

      Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to




                                     -6-
J-S48019-14



given another opportunit                Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).      Moreover, appellate review of a weight



review of the underlying question of whether the verdict is against the

weight of the evidence.    Widmer, 744 A.2d at 753.      When reviewing the




Id.

      Here, the Commonwealth presented the testimony of Stacey Blair,

Richard Kehr, and the responding Pennsylvania State Police trooper at trial.

Blair and Kehr both gave first-hand testimony to the events as described

supra. The State trooper testified that he observed injuries consistent with

the claims that Appellant had assaulted both Blair and Kehr.     The trooper

also testified that Appellant exhibited numerous signs of intoxication, and



because he had blacked out.       The jury credited the testimony of the

                              See Commonwealth v. Ratsamy, 934 A.2d



which the fact-                                                id not present



      Based on the foregoing, we discern no abuse of discretion or trial court



the weight of the evidence.    Nothing about the verdict is contrary to the

                                    -7-
J-S48019-14




in this matter.     The jury understood Blair had taken more sleeping

medication than her prescription called for, and yet still credited her

testimony. Appellant now asks this Court to reassess the credibility of this

witness. This we cannot do. See Ratsamy, supra. Thus, we agree that



                                                  his conviction was against

the weight of the evidence fails.   Further, our independent review of the

record has revealed no non-frivolous claims that Appellant could have raised,

and we agree with counsel that this appeal is wholly frivolous. Accordingly,

we affirm the judgment of sentence.



granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




                                    -8-
