J-S54039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE MANUEL FEBRES                         :
                                               :
                       Appellant               :   No. 601 MDA 2019

         Appeal from the Judgment of Sentence Entered March 22, 2019
       In the Court of Common Pleas of Mifflin County Criminal Division at
                        No(s): CP-44-CR-0000164-2018


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                            FILED FEBRUARY 26, 2020

        Appellant, Jose Manuel Febres, appeals from the Judgment of Sentence

entered in the Mifflin County Court of Common Pleas following his conviction

for Criminal Attempt-Criminal Homicide, Aggravated Assault, Aggravated

Assault with a Deadly Weapon, Terroristic Threats, two counts Recklessly

Endangering Another Person (“REAP”), and Simple Assault.1 With this appeal,

Appellant’s counsel has filed a Petition to Withdraw as Counsel and an Anders2

brief. After careful review, we affirm the Judgment of Sentence and grant

counsel’s Petition to Withdraw.

        We glean the following facts from the certified record. The Victim had

an on-and-off-again relationship with Appellant. Appellant had threatened the
____________________________________________


118 Pa.C.S. §§ 901(a), 2501, 2702(a)(1), 2702(a)(4), 2706(a)(1), 2705, and
2701(a)(1), respectively.

2   Anders v. California, 386 U.S. 738 (1967).
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Victim in the past, informing her that if he ever saw her with another man, he

would beat her and the other man.

      In February 2018, the Victim lived with her then-3 year old son, Tresa

Walker, and Dwayne Jones. On February 25, 2018, the Victim spent the day

with a male friend. Her male friend dropped her off at her house around 3:00

PM; Appellant and Mr. Jones were on the porch when the Victim returned

home.

      Later that day, around 5:00 PM, Mr. Jones prepared dinner in the kitchen

while Appellant, Ms. Walker, and the Victim and her son sat in the living room.

The Victim was sitting in a chair and began chatting with a male friend on her

cellphone. Appellant then approached the Victim, stood over her, and

instructed her to turn off her phone. The Victim turned off her phone and told

Appellant “don’t put your hands on me.” N.T. Trial, 1/15/19, at 37. Appellant

began punching the Victim and then stabbed the Victim with a kitchen knife.

Ms. Walker screamed that Appellant was hitting and stabbing the Victim, and

Mr. Jones ran into the living room to intervene. A struggled ensued, in which

Mr. Jones threw Appellant into a television. However, Appellant got up and

stabbed the Victim, yelling “bitch, I’m gonna kill you.” Id. at 42. Mr. Jones

then grabbed Appellant and pushed him out the door. However, Appellant re-

entered the house and again stabbed the Victim. Mr. Jones then threw

Appellant on the porch and locked the door.

      The Victim sustained injuries to her cheek, nasal bridge, chest, left

shoulder, and hands. After Ms. Walker called 911, the Victim was transported

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to the Lewisburg Hospital. Due to the severity of her injuries, a helicopter

transported the Victim to the Altoona Trauma Emergency Room, where

medical staff used surgical staples and sutures to treat her lacerations.

       Appellant was arrested and charged with the above crimes. A two-day

jury trial commenced on January 15, 2019, in which the Commonwealth

presented testimony from the Victim, Mr. Jones, Ms. Walker, and Megan

Morris, an expert witness physician assistant who treated the Victim.

       On January 16, 2019, Appellant was convicted of the above crimes. The

court ordered a pre-sentence investigation (“PSI”) report, and subsequently,

on March 22, 2019, sentenced Appellant to an aggregate term of 21 to 42

years of imprisonment.3 Appellant did not file a post-sentence motion.

       Appellant timely filed a Notice of Appeal. Thereafter, counsel filed a

Statement of Intent to File an Anders Brief. See Pa.R.A.P. 1925(c)(4).

Accordingly, the trial court did not file a Rule 1925(a) Opinion.

       Appellant’s counsel filed two Anders Briefs and a Petition to Withdraw

as Counsel with this Court. However, following this Court’s review of counsel’s

Anders briefs, we concluded that counsel failed to comply with Anders and

denied counsel’s Petition to Withdraw. Commonwealth v. Febres, No. 601

MDA 2019, unpublished memorandum (Pa. Super. filed Nov. 31, 2019). We

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3For sentencing purposes, the trial court merged one count REAP, Aggravated
Assault, Aggravated Assault with a Deadly Weapon, Terroristic Threats, and
Simple Assault convictions with the Criminal Attempt-Criminal Homicide
conviction.


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instructed counsel to file either a compliant Anders brief or an advocate’s

brief, and afforded the Commonwealth and Appellant 14 days to respond.

      Appellant’s counsel filed an Amended Anders Brief challenging the

sufficiency of evidence and Appellant’s sentence, and raising a claim of newly

discovered evidence. Amended Anders Br. at 4-9 (unpaginated). The

Commonwealth and Appellant have not filed a response.

      As a preliminary matter, we address counsel’s request to withdraw as

counsel. “When presented with an Anders Brief, this Court may not review

the merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). In order for counsel to withdraw from an appeal

pursuant to Anders, our Supreme Court has determined that counsel must

meet the following requirements:

      (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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).




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      Counsel has complied with the mandated procedure for withdrawing as

counsel. Additionally, counsel confirms that he sent Appellant a copy of

the Anders Brief and Petition to Withdraw, as well as a letter explaining to

Appellant that he has the right to retain new counsel, proceed pro se, or to

raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,

751 (Pa. Super. 2005) (describing notice requirements).

      Because counsel has satisfied the above requirements, we will first

address the substantive issues raised in the Anders Brief. Subsequently, we

must “make a full examination of the proceedings and make an independent

judgment as to whether the appeal is in fact wholly frivolous.” Santiago, 978

A.2d at 355 n.5 (citation omitted). See also Commonwealth v. Yorgey, 188

A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders requires the

reviewing court to “review ‘the case’ as presented in the entire record with

consideration first of issues raised by counsel”).

Issue 1: Sufficiency of the Evidence

      In his first issue, Appellant challenges the sufficiency of evidence

supporting all seven of his convictions—one count of Criminal Attempt-

Criminal Homicide, Aggravated Assault, Aggravated Assault with a Deadly

Weapon, Terroristic Threats, and Simple Assault, and two counts of REAP. See

Amended Anders Br. at 4-7 (unpaginated).

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur standard


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of review is de novo and our scope of review is plenary.” Commonwealth v.

Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted).                            In

reviewing a sufficiency challenge, we determine “whether the evidence at trial,

and all reasonable inferences derived therefrom, when viewed in the light

most favorable to the Commonwealth as verdict winner, are sufficient to

establish   all    elements     of   the    offense       beyond      a   reasonable     doubt.”

Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). “Further, a

conviction may be sustained wholly on circumstantial evidence, and the trier

of fact—while passing on the credibility of the witnesses and the weight of the

evidence—is       free    to   believe     all,   part,    or   none       of   the   evidence.”

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017). “In

conducting this review, the appellate court may not weigh the evidence and

substitute its judgment for the fact-finder.” Id.

      Criminal     Attempt-Criminal         Homicide,       Aggravated Assault, Simple
      Assault

      Pursuant to the Crimes Code, “[a] person commits attempt when, with

intent to commit a specific crime, he does any act which constitutes a

substantial step toward the commission of that crime.” 18 Pa.C.S. § 901.

Further, “[a] person is guilty of criminal homicide if he intentionally,

knowingly, recklessly or negligently causes the death of another human

being.” 18 Pa.C.S. § 2501. “The use of a deadly weapon on a vital part of the

human       body     is    sufficient      to     establish     the       specific    intent   to

kill.” Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005). The

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chest is considered a vital part of the body. Commonwealth v. Hanible, 836

A.2d 36, 39 (Pa. 2003). Thus, with respect to the Criminal Attempt-Criminal

Homicide charge, the Commonwealth was required to present evidence to

show that Appellant committed a substantial step toward intentionally causing

the death of another human being. 18 Pa.C.S. §§ 901, 2501

      A person is guilty of Aggravated Assault if he “attempts to cause serious

bodily injury to another, or causes such injury intentionally, knowingly or

recklessly under circumstances manifesting extreme indifference to the value

of human life[.]” 18 Pa.C.S. § 2702(a).

      A person is guilty of Simple Assault if he “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to another.” 18

Pa.C.S. § 2701(a)(1).

      “Deadly weapon” is defined as “any . . . device or instrumentality which,

in the manner in which it is used or intended to be used, is calculated or likely

to produce death or serious bodily injury.” 18 Pa.C.S. § 2301. “Serious bodily

injury” is defined as “[b]odily injury which creates a substantial risk of death

or which causes serious, permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” Id. Additionally,

“bodily injury” constitutes “[i]mpairment of physical condition or substantial

pain.” Id.

      Aggravated Assault and Simple Assault are lesser-included offenses of

Criminal     Attempt-Criminal   Homicide    when    premised    on   the   same


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act. Commonwealth v. Hilliard, 172 A.3d 5, 13 (Pa. Super. 2017); see

Commonwealth v. Brown, 605 A.2d 429, 432 (Pa. Super. 1992) (finding

that    the    elements    of simple assault are     met    by    a    conviction

for aggravated assault). Thus, evidence sufficient to prove Criminal Attempt-

Criminal Homicide is also sufficient to prove Aggravated Assault and Simple

Assault. See Hilliard, 172 A.3d at 13; Brown, 605 A.2d at 432.

       The Commonwealth presented evidence sufficient to establish every

element of Criminal Attempt-Criminal Homicide. The Victim testified that on

February 25, 2018, Appellant stabbed her multiple times with a four-to-five

inch long kitchen knife in the face, chest, left shoulder, and hands while yelling

“bitch, I’m gonna kill you.” N.T. Trial at 42, 50. She testified that she was

bleeding heavily from her wounds and was admitted to Altoona Hospital to

treat her injuries. Id. at 43. She indicated that she had scars on her chest,

shoulder, face, and hands from the attack. Id. at 47-49. Ms. Morris testified

that she assisted in treating the Victim’s face, chest, shoulder, and hand

wounds at Altoona Hospital with surgical staples and sutures. Id. at 139. She

opined that the Victim’s chest wound was approximately 3 to 4 centimeters

long and her facial laceration was approximately 7 centimeters long. Id. at

139-40.

       The evidence elicited at trial, when viewed in the light most favorable to

the Commonwealth demonstrates that Appellant stabbed the Victim in her

chest, a vital part of her body, with a knife while threatening to kill her.


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Additionally, the attack caused the Victim serious bodily injury—lacerations

requiring the need for surgical sutures and staples and resulting in scarring.

Thus, the Commonwealth presented evidence to show that Appellant

committed a substantial step toward intentionally causing the death of another

human being. The evidence was, therefore, sufficient to sustain Appellant's

convictions for Criminal Attempt-Criminal Homicide. Accordingly, the evidence

was also sufficient to prove Aggravated Assault and Simple Assault. See

Hilliard, 172 A.3d at 13; Brown, 605 A.2d at 432. Appellant’s challenges to

these convictions, therefore, have no merit.

       Aggravated Assault with a Deadly Weapon

       A person is guilty of Aggravated Assault with a Deadly Weapon if he

“attempts to cause or intentionally or knowingly causes bodily injury to

another with a deadly weapon[.]” 18 Pa.C.S. § 2702(a)(4).4

       The Commonwealth presented evidence sufficient to establish each

element of Aggravated Assault with a Deadly Weapon. As discussed above,

the Victim testified that on February 25, 2018, Appellant stabbed her multiple

times with a kitchen knife in the face, chest, left shoulder, and hands while


____________________________________________


4 Aggravated Assault under 18 Pa.C.S. § 2702(a)(4) is not a lesser-included
offense of Criminal Attempt-Criminal Homicide because Subsection (a)(4)
requires the Commonwealth to demonstrate the use of a deadly weapon,
whereas the elements of Criminal Attempt-Criminal Homicide do not. See 18
Pa.C.S. §§ 901(a), 2502(a). ). Here, however, the Commonwealth proved
Criminal Attempt-Criminal Homicide by demonstrating Appellant used a
deadly weapon on a vital part of the Victim’s body. See Randolph, 873 A.2d
at 1281.

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threatening to kill her. N.T. Trial at 38-39, 42, 50. She explained that she was

bleeding heavily from her stab wounds, which required treatment with staples

and sutures. Id. at 44. She testified that as a result of the attack, she suffers

from damaged nerves, pain, and limited use of her hand. Id. at 44-45.

      The evidence elicited at trial, when viewed in the light most favorable to

the Commonwealth demonstrates that Appellant intentionally caused bodily

injury to the Victim with a deadly weapon. Accordingly, the evidence was

sufficient to Aggravated Assault with a Deadly Weapon and Appellant’s

challenge to this conviction is meritless.

      Terroristic Threats

      A person commits the crime of Terroristic Threats “if the person

communicates, either directly or indirectly, a threat to [ ] commit any crime

of violence with intent to terrorize another. . . . ” 18 Pa.C.S. § 2706(a)(1). To

convict a defendant of Terroristic Threats, “the Commonwealth must prove

that 1) the defendant made a threat to commit a crime of violence, and 2) the

threat was communicated with the intent to terrorize another or with reckless

disregard for the risk of causing terror.” Commonwealth v. Beasley, 138

A.3d 39, 46 (Pa. Super. 2016) (citations omitted).

      The Official Comment to Section 2706 explains that “[t[he purpose of

th[is] section is to impose criminal liability on persons who make threats which

seriously impair personal security. . . . It is not intended by this section to

penalize mere spur-of-the-moment threats which result from anger.” 18


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Pa.C.S. § 2706 cmt. This Court has held that “being angry does not render a

person incapable of forming the intent to terrorize. In re J.H., 797 A.2d 260,

263 (Pa. Super. 2002)(citation omitted). Rather, “this Court must consider

the totality of the circumstances to determine whether the threat was a result

of a heated verbal exchange or confrontation.” Id.

      The Commonwealth presented evidence sufficient to establish each

element of Terroristic Threats. The Victim testified that on February 25, 2018,

Appellant punched her and then stabbed her multiple times with a kitchen

knife in the face, chest, left shoulder, and hands while threatening to kill her.

N.T. Trial at 38-39, 42, 50.

      The evidence elicited at trial, when viewed in the light most favorable to

the Commonwealth, demonstrates that Appellant made a threat to commit a

crime of violence with the intent to terrorize the Victim and did, in fact,

attempt to commit the crime of violence he threatened to commit.

Accordingly, the evidence was sufficient to establish Terroristic Threats and

Appellant’s challenge to this conviction is meritless.

      REAP

      Appellant was convicted of two counts of REAP, one for recklessly

endangering the Victim’s three-year old child and one for recklessly

endangering Ms. Walker.

      “A person commits [REAP] if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily


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injury.” 18 Pa.C.S. § 2705. REAP “is a crime directed against reckless conduct

entailing a serious risk to life or limb out of proportion to any utility the conduct

might have.” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super.

2014) (citation omitted). “A person acts in a reckless manner when he

consciously disregards a substantial and unjustifiable risk.” Id. (citing 18

Pa.C.S. § 302(b)(3)).

      The Commonwealth presented evidence sufficient to establish REAP.

The Victim testified that when Appellant stabbed her on February 25, 2018,

she was sitting on a chair next to her three-year old son and Ms. Walker, who

were both sitting on a loveseat. N.T. Trial at 57. The Victim recalled that when

Appellant was attacking her, she told Ms. Walker to grab her son and get out

of the living room. Id. at 66. Mr. Jones testified that the Victim, her son, and

Ms. Walker were in the living room during the attack, and he was concerned

for the Victim’s son when he realized Appellant was stabbing the Victim

“because [her son] was right there.” Id. 76-77.

      The evidence, viewed in a light most favorable to the Commonwealth

established that Appellant recklessly engaged in conduct—stabbing the Victim

in close proximity to her three-year old child and Ms. Walker, which placed

them in danger of death or serious bodily injury. Accordingly, the evidence

was sufficient to establish both REAP counts, and Appellant’s challenge to

these convictions is meritless.




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Issue 2: Sentencing

      In his second issue, Appellant challenges the discretionary aspects of

his sentence, asserting that his sentence is “manifestly unreasonable” and

“unduly harsh.” Amended Anders Br. at 8 (unpaginated).

      A challenge to discretionary aspects of a sentence is not reviewable as

a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.

Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction

by, inter alia, preserving a challenge at sentencing or in a post-sentence

motion. Id. “Objections to the discretionary aspects of a sentence are

generally waived if they are not raised at the sentencing hearing or in a motion

to modify the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013).

      Here, Appellant did not preserve this challenge at his sentencing hearing

or thereafter in a Post-Sentence Motion. Accordingly, he has waived any

challenge to discretionary aspects of his sentence.

      When an appellant fails to raise an issue before the trial court and has,

thus, waived the issue on direct appeal, the courts consider that issue

“frivolous” for purposes of an Anders analysis. Commonwealth v. Tukhi,

149 A.3d 881, 888-89 (Pa. Super. 2016); Commonwealth v. Kalichak, 943

A.2d 285, 291 (Pa. Super. 2008). Accordingly, we agree with counsel that

Appellant's   discretionary   aspects    of     sentencing   challenge   raised   in

counsel's Anders Brief is frivolous.


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Issue 3: Newly Discovered Evidence

      In his third issue, Appellant purports to raise a claim of newly discovered

evidence. Amended Anders Br. at 8 (unpaginated). Appellant asserts that

after trial, his grandmother informed him that the Victim had been fired from

her job as a sales person, which contradicted her testimony that she had quit

her job. Id. Therefore, he contends that this evidence would compel a

different verdict. Id. at 9.

      A claim of newly discovered evidence may be raised for the first time on

appeal. Commonwealth v. Rivera, 939 A.2d 355, 358 (Pa. Super. 2007).

To warrant relief, newly discovered evidence must: (1) not have been obtained

before the conclusion of the trial by reasonable diligence; (2) not be merely

corroborative or cumulative; (3) not be used solely for purposes of

impeachment; and (4) be of such a nature and character that a different

outcome is likely. Id. at 359.

      In his Anders Brief, counsel fails to set forth the newly discovered

evidence four-prong test. See Amended Anders Br. at 8-9 (unpaginated).

Nevertheless, counsel acknowledges that new evidence used only for the

purpose to impeach credibility does not warrant relief as newly discovered

evidence. Id. at 9.

      We agree that Appellant’s claim does not warrant relief because his

alleged new evidence would be used solely for the purpose to impeach the


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Victim’s credibility. Rivera, supra at 359. Accordingly, this claim has no

merit.

Conclusion

     Additionally, our independent review of the record does not reveal any

non-frivolous arguments available to Appellant. Thus, we agree with counsel

that this appeal is wholly frivolous. Accordingly, we grant counsel’s

Petition to Withdraw as Counsel and affirm Appellant’s Judgment of Sentence.

     Judgment      of   Sentence   affirmed.   Counsel’s Petition to Withdraw as

Counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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