J-S05021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
             v.                          :
                                         :
MICHAEL BRUCE WILLIAMS,                  :
                                         :
                        Appellant        :     No. 873 WDA 2014


       Appeal from the Judgment of Sentence Entered April 28, 2014,
                In the Court of Common Pleas of Erie County,
            Criminal Division, at No. CP-25-CR-0003349-2012.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 11, 2015

      Appellant, Michael Bruce Williams, appeals from the judgment of

sentence imposed following his convictions of rape, aggravated assault,

recklessly   endangering    another   person    (“REAP”),    and   possessing

instruments of a crime (“PIC”).     Appellate counsel has filed a petition to

withdraw her representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), which govern a withdrawal from representation on direct appeal.

Appellant has filed a response to counsel’s petition to withdraw. We grant

counsel’s petition to withdraw and affirm the judgment of sentence.

      The trial court summarized the history of this case as follows:

           In the early morning hours of March 18, 2012, [Victim]
      consumed alcohol at a house party and left seeking money to
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     buy crack cocaine. N.T. Trial (Day 1), 1/16/14, at 27, 29-32.
     [Victim] walked to the Shell gas station on East 6th Street, City
     of Erie, and saw Appellant standing outside. Id., at 31-32.
     [Victim] approached Appellant, propositioned him, and asked if
     he had money. Id., at 33. Appellant replied “yeah” and [Victim]
     asked [Appellant] to come into the alley with her. Id., at 33.

           They both entered the alley and [Victim] asked [Appellant]
     for the money. Id., at 34. Once she realized that Appellant had
     no money, [Victim] tried to leave. Id., at 34. Appellant grabbed
     [Victim’s] arm, began fondling her breasts and buttocks, and
     attempted to remove her clothes. Id., at 35-39. Appellant hit
     [Victim] and she tried unsuccessfully to fight [Appellant] off with
     her screwdriver. Id., at 39, 41. [Victim] attempted to dial 911
     from her cell phone, but Appellant took it and put it in his
     pocket. Id., at 40.

           When she attempted to leave again, Appellant punched
     [Victim] in the face and slammed her to the ground. Id., at 42-
     43. Appellant removed [Victim’s] pants and underwear. While
     [Victim] was lying on her stomach, Appellant began “humping
     her from behind” with his penis in her vaginal and anal areas.
     Id., at 43, 45, 48, 49, 52, 64. [Victim] could feel [Appellant’s]
     penis on her buttocks and the outer lips of her vaginal area. Id.,
     at 86, 89. Appellant also placed a belt around [Victim’s] neck
     and struck [Victim] in the eye with the belt buckle. Id., at 43,
     50.

           Over the course of several hours, [Victim] repeatedly told
     [Appellant] to stop and even told him [that] she had AIDS. Id.,
     at 59-60, 80-82. Appellant refused to stop until approximately
     7:00 a.m., when Erie Police Department Officer Pete Dregalla
     arrived at the scene. Id., at 94. Dregalla entered the alley,
     heard [Victim] yelling for him, and saw Appellant on top of
     [Victim] with his pants down. Id., at 96-98. Appellant stood up
     and pulled up his pants, while [Victim] was screaming. Id., at
     98-99. [Victim] was visibly upset and Dregalla noticed that
     [Victim] had a swollen, black eye and minor scrapes. Id., at
     100, 104.     He also saw clothes, a belt, screwdriver, and
     [Victim’s] wig on the ground. Id., at 100, 108.




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           After Appellant was arrested and transported to the police
     station, police recovered [Victim’s] cellular phone from Appellant
     during the booking process. Id., at 104-105.

           [Victim] was transported to the hospital and Jill Little, a
     sexual assault nurse examiner, performed a forensic
     examination.    Id., at 56, 113, 115.         Before the internal
     examination, [Victim] indicated to [Little] that there was vaginal
     penetration and Appellant attempted anal penetration. Id., at
     124. Little observed that [Victim], who was visibly upset, had a
     swollen/bruised eye and dirt in her hair and on her body. Id., at
     119-121. [Victim] complained of tightness in her neck from the
     belt and abdominal pain where [Victim] was kicked by Appellant.
     Id., at 122, 130. [Victim] also complained of pain around her
     hymen. Id., at 123, 127.

           During the examination, Little observed an abrasion near
     [Victim’s] clitoral hood and swelling to [Victim’s] hymen. Id., at
     123, 127. [Victim] complained of pain when Little tried to insert
     a speculum and, therefore, [Little] stopped the internal
     examination. Id., at 123, 127.

          On September 26, 2012, Erie Police Department James
     Spagel took videotaped statements from Appellant and [Victim].

           On January 17, 2014, following a two-day jury trial,
     Appellant was found guilty of the foregoing offenses. This Court
     subsequently ordered a sexual violent predator (SVP)
     assessment pursuant to Pennsylvania’s version of “Megan’s
     Law,[”] the Sexual Offender Registration and Notification Act, 42
     Pa.C.S.A. § 9799.10, et. seq. (“SORNA"). By letter dated April
     14, [2014], the Sexual Offenders Assessment Board determined
     that Appellant did not meet the criteria of a sexually violent
     predator.

           On April 28, 2014, Appellant was sentenced to the
     following: 6 to 20 years’ imprisonment for Count 1 (rape); 1 ½
     to 5 years imprisonment for Count 2 (aggravated assault),
     consecutive to Count 1; 6 to 24 months’ imprisonment for Count
     3 (recklessly endangering another person), concurrent to Count
     1; and, 9 to 60 months’ imprisonment for Count 4 (possessing




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      instruments of a crime), concurrent to Count 1.       Appellant did
      not file a post-sentence motion.

            On May 27, 2014, Appellant filed a timely Notice of Appeal.
      In response to this Court’s 1925(b) Order, Appellant filed a
      timely Statement of Matters Complained of on Appeal on July 1,
      2014.

Trial Court Opinion, 7/21/14, at 1-3.

      As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that counsel 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) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within her petition

to   withdraw,   counsel   averred   that     she   conducted   a   conscientious

examination of the record.    Following that review, counsel concluded that

the present appeal is wholly frivolous. Counsel sent to Appellant a copy of

the Anders brief and petition to withdraw, as well as a letter, a copy of




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which is attached to the petition to withdraw. In the letter, counsel advised

Appellant that he could represent himself or that he could retain private

counsel to represent him.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that

      in 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago. It sets forth the history of

this case and outlines pertinent case authority. We thus conclude that the

procedural and briefing requirements for withdrawal have been met.

      Counsel presents the following issue for our review:

      Whether the appellant’s sentence is manifestly excessive, clearly
      unreasonable and inconsistent with the objectives of the
      Sentencing Code?

Appellant’s Brief at 3.

      Appellant argues that the trial court abused its discretion in imposing

the sentence in this case. Specifically, Appellant contends that the sentence

imposed was harsh and excessive in light of the factors which should have


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been considered by the sentencing court.      Thus, counsel is purporting to

present a challenge to the discretionary aspects of Appellant’s sentence.

      It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006).       Rather, an appellant’s appeal should be

considered to be a petition for allowance of appeal.     Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

            [W]e 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.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

      In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d

790 (Pa. Super. 1995), wherein this Court observed that, although



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Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions

as optional, the rule expressly provides that only issues raised in the trial

court will be deemed preserved for appellate review. Applying this principle,

the Reeves Court held that an objection to a discretionary aspect of a

sentence is waived if not raised in a post-sentence motion or during the

sentencing proceedings.   Commonwealth v. Parker, 847 A.2d 745 (Pa.

Super. 2004) (holding challenge to discretionary aspect of sentence was

waived because appellant did not object at sentencing hearing or file post-

sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super.

2000) (same).

     Initially, we conclude that the first requirement of the four-part test is

met because Appellant brought this direct appeal in a timely manner

following the imposition of sentence.    However, our review of the record

reflects that Appellant did not meet the second requirement because he did

not raise his current challenge in a post-sentence motion or at the time of

sentencing. Therefore, we are constrained to conclude that Appellant’s issue

is waived, and we are precluded from addressing the merits of this issue on

appeal.

     Also, as noted above, Appellant filed an eighty-page pro se response

to counsel’s petition to withdraw, which we have reviewed. In his response,

Appellant asserts bald claims that there was insufficient evidence to support




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his convictions, and that the evidence presented against him lacked

credibility.

       Regarding Appellant’s attempt to argue that the evidence was

insufficient to support his convictions, when challenging the sufficiency of

the evidence on appeal, an appellant must specify the element or elements

upon which the evidence was insufficient in order to preserve the issue for

appeal.    See Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009) (finding sufficiency claim waived for failure to specify either in Rule

1925(b) statement or in argument portion of appellate brief which elements

of crimes were not proven beyond a reasonable doubt). In his response to

counsel’s petition to withdraw, Appellant has failed to specify which elements

of his crimes were allegedly not proven beyond a reasonable doubt by the

Commonwealth.        Consequently, Appellant’s non-specific claims challenging

the sufficiency of the evidence that fail to specify the elements of the crimes

allegedly not proven by the Commonwealth are waived.

       Furthermore, as for Appellant’s pro se challenge to the credibility of

the evidence presented by the Commonwealth, we observe that such a claim

is   properly   characterized   as   a   weight   of   the   evidence   challenge.

Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa. Super. 2003).

Indeed, a challenge to the weight of the evidence questions which evidence

is to be believed.    Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.




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Super. 2006). However, Appellant has failed to preserve a challenge to the

weight of the evidence for our review.          Pennsylvania Rule of Criminal

Procedure 607 and its comment instruct that in order to preserve for

appellate review a claim that a verdict is against the weight of the evidence,

the issue must be raised with the trial judge in a motion for a new trial

either orally or in writing prior to sentencing, or in a post-sentence motion.

See Pa.R.Crim.P. 607.      Here, Appellant never filed with the trial court an

oral or written motion for a new trial prior to sentencing, or a post-sentence

motion challenging the weight of the evidence.        Accordingly, we conclude

that Appellant’s pro se claims challenging the weight of the evidence are

waived. See Pa.R.Crim.P. 607; Commonwealth v. Butler, 729 A.2d 1134,

1140 (Pa. Super. 1999) (holding that a challenge to the weight of the

evidence is waived for failure to present the issue first to the trial court).

      To the extent that Appellant has presented in his pro se response to

counsel’s petition to withdraw claims that his trial counsel was ineffective for

various reasons, we observe that in Commonwealth v. Grant, 813 A.2d

726 (Pa. 2002), the Pennsylvania Supreme Court stated that “as a general

rule, a petitioner should wait to raise claims of ineffective assistance of trial

counsel until collateral review.”    Id. at 738.     Underlying this rule is the

Supreme Court’s observation that “time is necessary for a petitioner to

discover and fully develop claims related to trial counsel ineffectiveness.”




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Id. at 737-738.    Thus, “the record may not be sufficiently developed on

direct appeal to permit adequate review of ineffectiveness claims[.]” Id. at

737. Because appellate courts do not normally consider issues that were not

raised and developed in the court below, the Grant court reasoned that

“[d]eferring review of trial counsel ineffectiveness claims until the collateral

review stage of the proceedings offers a petitioner the best avenue to effect

his Sixth Amendment right to counsel.” Id. at 738.

       In Grant, however, our Supreme Court acknowledged that under

limited circumstances, the Court could create exceptions and review certain

claims of ineffectiveness on direct appeal. Grant, 813 A.2d at 738 n.14. In

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), the Pennsylvania

Supreme Court made an exception to the rule it announced in Grant.

“[C]laims of ineffectiveness may be heard on direct appeal, where the claims

were   raised   before   the   trial   court,   and   a   record   was   developed.”

Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa. Super. 2010) (citing

Bomar, 826 A.2d at 845).

       Subsequently, in Commonwealth v. Arrington, 86 A.3d 831 (Pa.

2014), our Supreme Court explained that trial courts retain discretion to

address ineffective assistance of counsel claims prior to the filing of a

petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546, in certain limited situations, as follows:




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             We recently held in [Commonwealth v. Holmes, 79 A.3d
      562 (Pa. 2013),] that claims of ineffective assistance of counsel
      litigated after our decision in Grant, are not generally a proper
      component of a defendant’s direct appeal. In Holmes, this
      Court reaffirmed the general rule of deferral established in
      Grant, and disapproved of expansion of the so-called Bomar
      exception, which allowed for the presentation of ineffectiveness
      claims on direct appeal if the trial court held an evidentiary
      hearing and disposed of the ineffectiveness claims in its opinion.
      This Court in Holmes limited the Bomar exception to its pre-
      Grant facts. We further recognized two exceptions to the Grant
      deferral rule, both falling within the discretion of the trial court.
      First, we held that trial courts retain discretion, in extraordinary
      circumstances, to entertain a discrete claim of trial counsel
      ineffectiveness if the claim is both apparent from the record and
      meritorious, such that immediate consideration best serves the
      interest of justice. Second, we held that trial courts also have
      discretion to entertain prolix claims of ineffectiveness if there is a
      good cause shown and the unitary review thus permitted is
      accompanied by a knowing and express waiver by the defendant
      of the right to pursue a first PCRA petition.

Arrington, 86 A.3d at 856-857 (footnote omitted).

      Instantly, our review of the record reflects that the exceptions

announced in Holmes do not apply.           Appellant did not raise claims of

ineffective assistance of trial counsel before the trial court. Thus, the trial

court has not exercised its discretion by reviewing Appellant’s claims of

ineffective assistance of counsel. In addition, Appellant has not waived his

right to later PCRA review.       While Appellant is free to raise claims of

ineffective assistance of counsel in a future PCRA petition, we may not

address any issues of trial counsel ineffectiveness on direct appeal. Hence,

because Appellant’s ineffective assistance of counsel claims do not fall into




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the exceptions discussed above, we dismiss his claims without prejudice to

Appellant’s right to raise them on collateral review pursuant to the PCRA.

See Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014) (dismissing,

pursuant to Holmes, the appellant’s ineffective assistance of counsel claims

raised on direct appeal without prejudice to pursue them on collateral

review). Thus, Appellant has not set forth any claim that we may address,

or any argument upon which we could grant relief.

      We also have independently reviewed the record in order to determine

whether     there   are   any   non-frivolous   issues   present   in   this   case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having

concluded that there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw, and affirm the judgment of sentence.1

      Petition of counsel to withdraw is granted.         Judgment of sentence

affirmed.




1
  We note that in his pro se response to counsel’s petition to withdraw,
Appellant has requested that his pro se response be returned to him in the
event that this Court denies relief.        Accordingly, the Superior Court
Prothonotary is directed to return to Appellant the original copy of his pro se
response to counsel’s petition to withdraw.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/11/2015




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