J-S16011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT J. STEELE, SR.

                            Appellant                   No. 569 WDA 2016


            Appeal from the Judgment of Sentence December 15, 2015
                   In the Court of Common Pleas of Elk County
               Criminal Division at No(s): CP-24-CR-0000132-2015


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                           FILED AUGUST 11, 2017

       Robert J. Steele, Sr. appeals from the December 15, 2015 judgment of

sentence imposed by the Elk County Court of Common Pleas following his

convictions for simple assault, harassment, registration and certificate of

title required, and driving while operating privilege suspended.1     Steele’s

counsel has also filed an Anders2 brief and a petition to withdraw from

representation.     We affirm the judgment of sentence and grant counsel’s

petition.


____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
       18 Pa.C.S. § 2701(a)(1), 18 Pa.C.S. § 2709(a)(1), 75 Pa.C.S.
§ 1301(a), and 75 Pa.C.S. § 1543(b)(1), respectively.
       2
           Anders v. California, 386 U.S. 738 (1967).
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       This appeal arises from an incident involving Steele and his fiancé,

Jessica Stefano, on March 30, 2015 at Steele’s residence. The       trial   court

summarized the pertinent trial testimony as follows:
           Ms. Stefano arrived at the emergency department by
           ambulance and presented as having sustained traumatic
           injuries to her head and face. A photograph of her injuries
           was taken (Commonwealth’s Exhibit 1) and Dr. [Dustin]
           McRea observed swelling to [Stefano’s] left cheek and to
           the bridge of her nose. She had a through-and-through
           laceration to her lip, a fair amount of blood in her mouth,
           had two broken teeth, and was missing a few other teeth.

              . . . Stefano was alert and able to communicate with Dr.
           McRea[,] although she could not recall if she had lost
           consciousness after sustaining the injuries. She provided a
           history of her injuries by indicating that her boyfriend,
           defendant Robert Steele, had assaulted her and punched
           her in the face multiple times. During the course of
           treating Stefano for about an hour, Dr. McR[ea] became
           concerned that she may have sustained a moderate
           traumatic brain injury[,] and Stefano was transported by
           helicopter to a trauma center in Pittsburgh, Pa. In addition
           to the initial injuries discerned by Dr. McR[ea], it was
           subsequently determined that . . . Stefano had also
           sustained a fracture of the left eye orbit.

Trial Court Opinion Pursuant to Pa.R.A.P. 1925(a), 5/11/16, at 2 (“1925(a)

Op.”).

       Steele proceeded to a jury trial on October 1, 2015.3      At trial, both

Stefano and Steele testified that Stefano accidentally fell off the deck at

____________________________________________


       3
       The cover page of the notes of testimony lists the trial date as
October 1, 2016. However, it is evident from the trial court docket and the
remainder of the certified record that the trial date was actually October 1,
2015.



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Steele’s residence and onto a propane tank, causing the injuries to her face

and head. See N.T., 10/1/15, at 74, 171-72.

      The jury convicted Steele of one count of simple assault, and the trial

court convicted him of the aforementioned summary offenses.               On

December 7, 2015, the trial court sentenced Steele to an aggregate term of

1 to 2 years’ incarceration, with credit for time served from April 1, 2015.

Steele timely filed post-sentence motions, which the trial court denied on

March 16, 2016. Steele timely appealed to this Court.

      Because counsel has filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009), we must first address counsel’s petition before we can

review the merits of Steele’s underlying issues.

      To withdraw as counsel under Anders, counsel must file a brief that

meets the requirements established by the Pennsylvania 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 advising the appellant

of his or her right to “(1) retain new counsel to pursue the appeal; (2)

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

worthy of the court’s attention in addition to the points raised by counsel in

the Anders brief.”     Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa.Super. 2014) (quoting Commonwealth v. Nischan, 928 A.2d 349, 353

(Pa.Super. 2007)).

      Here, counsel’s petition states that he thoroughly reviewed the record

and determined that any appeal would be frivolous.       In the Anders brief,

counsel summarizes the facts and procedural history of the case, refers to

evidence of record that might arguably support the issue raised on appeal,

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

to support his conclusion. Additionally, counsel provided Steele with a copy

of the Anders brief and petition to withdraw and a letter advising Steele of

his intent to withdraw and of Steele’s right to retain new counsel or proceed

pro se. Accordingly, counsel has complied with the requirements of Anders

and Santiago.

      Steele has not filed a pro se brief or a counseled brief with new,

privately-retained counsel.   Therefore, we review the issue raised in the

Anders brief.

      Steele presents one question for our review:
             Whether the trial court erred by denying [Steele’s]
         motion for arrest of judgment and new trial for the offense
         of [s]imple [a]ssault, based upon the weight of the
         evidence presented at trial, when both the alleged victim
         and [Steele] testified that [Steele] did not assault the
         alleged victim and that her injuries were caused
         accidentally and the only substantive evidence of an

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         assault offered at trial was the testimony of the doctor who
         treated the alleged victim, that she told the doctor that she
         had been punched and/or assaulted.

Anders Br. at 4.

      We review a weight of the evidence claim for an abuse of discretion.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “One of the least

assailable reasons for granting or denying a new trial is the lower court’s

conviction that the verdict was or was not against the weight of the evidence

and that a new trial should be granted in the interest of justice.”          Id.

(quoting Commonwealth v. Widmer 744 A.2d 745, 753 (Pa. 2000)).

“Because the trial judge has had the opportunity to hear and see the

evidence presented, an appellate court will give the gravest consideration to

the findings and reasons advanced by the trial judge when reviewing a trial

court’s determination that the verdict is against the weight of the evidence.”

Id.

      A trial court should not grant a motion for a new trial “because of a

mere conflict in the testimony or because the judge on the same facts would

have arrived at a different conclusion.”    Clay, 64 A.3d at 1055.       “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.’”        Id. (quoting

Widmer, 744 A.2d at 752).       “[A] new trial should be awarded when the

jury’s verdict is so contrary to the evidence as to shock one’s sense of

justice and the award of a new trial is imperative so that right may be given


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another opportunity to prevail.”   Id. (quoting Commonwealth v. Brown,

648 A.2d 1177, 1189 (Pa. 1994)).

     Steele contends that the weight of the evidence did not support his

simple assault conviction because the jury should have afforded greater

weight to Steele’s and Stefano’s testimony that Stefano’s injuries were

accidental than to Dr. McRea’s testimony. We disagree.

     The trial court rejected Steele’s weight of the evidence claim,

reasoning:
           Stefano’s trial testimony was inapposite to the
        statement she provided to Dr. McRea shortly after the
        incident, but the jury was entirely within its bounds as
        finders of fact to give more credit to Stefano’s statement
        to Dr. Mc[Rea] over her trial version of the incident
        requiring her hospitalization. Similarly, the jury was in the
        optimal position to weigh Steele’s trial testimony as well
        and determine the credibility to be attributed to both
        Steele’s and Stefano’s testimony as well as that of Dr.
        McRea.
                                     ...

           In having exercised its discretion, this Court is well
        satisfied that there is no merit to Steele’s weight of the
        evidence challenge. The jury’s determination to give more
        weight to certain facts such as Dr. McRea’s testimony
        relating . . . Stefano’s statements to him in the course of
        treating her injuries than to Stefano and Steele’s
        testimony that her injuries were caused by her tripping
        and falling onto a propane tank was grounded in the
        evidentiary record. There is no basis to disturb the jury’s
        findings or to reweigh the evidence.

1925(a) Op. at 2-3. After reviewing the evidence of record, we agree. We

conclude that the verdict was not so contrary to the evidence presented as




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to shock one’s sense of justice. Accordingly, the trial court did not abuse its

discretion in denying Steele’s motion for a new trial.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2017




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