J-S40023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DESMOND LAMAR SNEAD                        :
                                               :
                       Appellant               :   No. 40 WDA 2019

         Appeal from the Judgment of Sentence Entered August 9, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0004162-2017


BEFORE:      BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED JANUARY 06, 2020

        Desmond Lamar Snead appeals from the judgment of sentence entered

following his conviction for aggravated assault.1 Snead’s counsel previously

filed an Anders2 brief and request to withdraw, which we denied. Counsel has

since filed a new Anders brief and request to withdraw. We now grant

counsel’s request to withdraw and affirm Snead’s judgment of sentence.

        At Snead’s non-jury trial, the Commonwealth presented the testimony

of the victim. The victim testified that while she was waiting for a bus, a car

carrying Snead, who was the victim’s neighbor, and Snead’s codefendant

drove past her. The car then made a U-turn and stopped between ten and 12

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*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2702(a)(1).

2   Anders v. California, 386 U.S. 738 (1967).
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feet from her. Snead, seated in the rear passenger seat, stuck his head out of

the car window and made eye contact with the victim. Snead and the

codefendant started firing guns from the car windows, striking the victim in

her thigh. The victim thereafter identified Snead from a photo array, and

identified Snead in the courtroom during trial. The Commonwealth also

presented two police detectives, who testified to recovering two nine-

millimeter shell casings near the scene of the shooting, and recounted that

the victim identified Snead after the shooting without hesitation.

       The court found Snead guilty and sentenced him to serve four to eight

years’ incarceration. Shortly after sentencing, Snead’s counsel requested to

withdraw, and newly appointed counsel entered his appearance.3 Snead’s new

counsel filed a post-sentence motion, challenging the sufficiency of the

evidence. The motion was denied by operation of law, and Snead filed a timely

notice of appeal.

       As noted above, Snead’s counsel previously filed a motion to withdraw

in this Court. We denied that request because counsel failed to represent that

the appeal was wholly frivolous, and had not advised Snead of his right to

raise immediately any additional points for our review, either pro se or through

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3 Snead’s sentencing took place on August 9, 2018. Counsel filed a motion to
withdraw on August 17, and new appointed counsel entered his appearance
on August 20. On August 22, Snead’s new counsel filed a petition to reinstate
Snead’s post-sentence and appeal rights nunc pro tunc, which the trial court
granted within 30 days of sentencing. The trial court thus had jurisdiction to
grant such relief, see Commonwealth v. Dreves, 839 A.2d 1122, 1128 n.6
(Pa.Super. 2003) (en banc), and our jurisdiction over this appeal is proper.

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other counsel. See Commonwealth v. Snead, No. 40 WDA 2019 at *2-3

(Pa.Super., filed October 21, 2019) (unpublished memorandum). Counsel has

since filed a new motion to withdraw and a new Anders brief.

      After a review of the new withdraw request and Anders brief, we are

satisfied that Snead’s counsel has cured the previous defects and conformed

to the necessary technical requirements. See Snead, No. 40 WDA 2019 at

*1-2. We therefore turn to our independent review of whether the appeal is

wholly frivolous. Commonwealth v. Dempster, 187 A.3d 266, 271-72

(Pa.Super. 2018) (en banc). We note that Snead has not responded to

counsel’s withdrawal request or filed any other documents in this Court.

      In the Anders brief, counsel discusses the sole issue raised in Snead’s

post-sentence motion:

      Was the evidence presented by the Commonwealth sufficient to
      sustain the verdict, when the record shows that the victim failed
      to identify [Snead] as the shooter and there was no other evidence
      tending to establish that [Snead] was present at the scene and
      involved with the shooting, requiring the fact finder to rely on
      conjecture to decide the case?

Anders Br. at 3.

      “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.” Commonwealth

v. Miller, 217 A.3d 1254, 1256 (Pa.Super. 2019) (quoting Commonwealth

v. Bradley, 69 A.3d 253, 255 (Pa.Super. 2013)). We review the evidence de

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novo, but do not substitute our weighing of the evidence for that of the fact-

finder, who is free to believe all, part, or none of the evidence.

Commonwealth v. Hall, 199 A.3d 954, 960 (Pa.Super. 2018), appeal

denied, 206 A.3d 1028 (Pa. 2019). We will not find the evidence insufficient

unless it is “so weak and inconclusive that as a matter of law no probability of

fact may be drawn from the combined circumstances.” Miller, 217 A.3d at

1256.

        To prove the defendant guilty of aggravated assault under the relevant

subsection, the Commonwealth must present evidence to establish the

defendant “attempt[ed] to cause serious bodily injury to another, or cause[d]

such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life[.]” 18 Pa.C.S.A.

§ 2702(a)(1); see also Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa.Super.

2012). “[F]or the degree of recklessness contained in the aggravated assault

statute to occur, the offensive act must be performed under circumstances

which almost assure that injury or death will ensue.” Commonwealth v.

Thompson, 739 A.2d 1023, 1028 (Pa. 1999) (quoting Commonwealth v.

O’Hanlon, 653 A.2d 616, 618 (Pa. 1995)).

        Here, the Commonwealth presented evidence that Snead shot the

victim. The victim identified Snead, both to the police and in the courtroom,

and recognized him as a neighbor. The victim testified that Snead pointed a

gun out of a car window and fired it in her direction. The Commonwealth also

presented evidence that Snead acted recklessly. The victim testified that the

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car carrying Snead made a U-turn in order to return to where she was

standing, she and Snead made eye contact, and Snead, along with another

individual in the car, fired multiple shots in her direction, striking her in the

leg. We conclude this evidence was sufficient to establish the elements of

aggravated assault.

       Our review of the record reveals no other issue that would not be wholly

frivolous to pursue on appeal.4 We therefore grant counsel’s motion to

withdraw, and affirm Snead’s judgment of sentence.

       Judgment of sentence affirmed. Motion to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2020




____________________________________________


4 We note the transcript of the sentencing hearing is not included in the
certified record.

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