J-S19030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ESAU LASHOW SCOTT,

                            Appellant                   No. 1281 MDA 2016


         Appeal from the Judgment of Sentence Entered June 29, 2016
               In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0002047-2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 16, 2017

        Appellant, Esau Lashow Scott, appeals from the judgment of sentence

of an aggregate term of 18 to 36 months’ incarceration, imposed after a jury

convicted him of simple assault, 18 Pa.C.S. § 2701(a)(1), and disorderly

conduct, 18 Pa.C.S. § 5503(a)(1).              Appellant seeks to challenge the

sufficiency and weight of the evidence to sustain his simple assault

conviction, as well as the discretionary aspects of his sentence. Additionally,

his counsel, Ian M. Brink, Esq., has filed a petition to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After

careful review, we affirm Appellant’s judgment of sentence and grant

counsel’s petition to withdraw.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      On May 23, 2016, a jury convicted Appellant of the above-stated

offenses, and acquitted him of aggravated assault. Appellant’s convictions

were based on the following facts, as summarized by the trial court:

             On November 6, 2015, [Appellant] visited a bar in
      Chambersburg, Pennsylvania. This particular bar features pool
      tables for its patrons’ enjoyment.      According to testimony
      presented at trial, there existed an unspoken rule (not bar
      policy) that in order to play pool on one of the tables, an
      individual must first play and beat one of the bar’s regular
      customers, Toby. That night, [Appellant] attempted to play a
      game of pool without first playing Toby. As a result, [Appellant]
      became involved in a verbal altercation with Toby. [Appellant]
      escalated the situation by striking Toby. A veritable bar brawl
      ensued.

            Near the end of the altercation, [Appellant] found himself
      behind the bar’s security staff, and across the room from Toby,
      who was brandishing a stool above his head at a distance of
      about twelve (12) or fourteen (14) feet away from [Appellant].
      Ultimately, [Appellant] grabbed multiple pool balls off one of the
      tables, and aimed and threw one across the room at Toby.
      However, the pool ball missed its target, instead striking another
      patron, Ms. Taray Wilkerson, who was standing close by Toby.
      Ms. Wilkerson sustained injuries to her face and eye, notably
      including a fractured skull and various effects to her vision.

Trial Court Opinion (TCO), 10/21/16, at 2-3 (citations to the record

omitted).

      Following Appellant’s conviction, he was sentenced on June 29, 2016,

to 12 to 24 months’ incarceration for his simple assault offense, and a

consecutive term of 6 to 12 months’ incarceration for his disorderly conduct

conviction.   Appellant filed a timely notice of appeal, and he also timely

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.




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Therein, Appellant preserved the issues he seeks to raise herein, stating

them as follows:

     1. The verdict was in error and overwhelmingly against the
     sufficiency and weight of evidence so as to shock one’s sense of
     justice.

     2. The sentence imposed by th[e] [c]ourt on June 29, 2016 was
     unduly harsh and does not meet the rehabilitative needs of
     [Appellant], and creates an undue burden on [Appellant] and
     [his] family; which is in direct opposition [to] the heart of the
     Commonwealth’s rules and procedures governing sentencing and
     rehabilitation.

Appellant’s Pa.R.A.P. 1925(b) Statement, 8/22/16, at 1-2 (unnumbered).

     As indicated, supra, Attorney Brink has filed with this Court a petition

to withdraw and an Anders brief, asserting that the issues Appellant seeks

to raise are frivolous, and that he has no other non-frivolous issues that

counsel could argue on appeal.

     This Court must first pass upon counsel's petition to withdraw
     before reviewing the merits of the underlying issues presented
     by [the appellant]. 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 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


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         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 also must provide a copy of
      the Anders brief to his client. Attending the brief must be a
      letter that advises the client of his right to: “(1) retain new
      counsel to pursue the appeal; (2) 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. Nischan, 928 A.2d 349,
      353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”     Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In this case, Attorney Brink’s Anders brief substantially complies with

the above-stated requirements.      Namely, he includes a summary of the

relevant factual and procedural history (although he fails to provide citations

to the record), he refers to portions of the record that could arguably

support Appellant’s claims, and he sets forth his conclusion that those

issues, and Appellant’s appeal as a whole, are frivolous. He also explains his

reasons for reaching that determination, and supports his rationale with

citations to the record and pertinent legal authority.    Attorney Brink also

states in his petition to withdraw that he has supplied Appellant with a copy

of his Anders brief, and he attaches a letter directed to Appellant in which

he informs him of the rights enumerated in Nischan. Accordingly, counsel

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has sufficiently complied with the technical requirements for withdrawal. We

will now independently review the record to determine if Appellant’s issues

are frivolous, and to ascertain if there are any other, non-frivolous issues

Appellant could pursue on appeal.

      First, according to Attorney Brink, Appellant seeks to challenge the

sufficiency of the evidence to sustain his simple assault conviction.
            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      Regarding the offense of simple assault, this Court has explained:
      Section 2701(a) of the Crimes Code provides that a person is
      guilty of [simple] assault if that person “attempts to cause or
      intentionally, knowingly or recklessly causes bodily injury to
      another.” 18 Pa.C.S.A. § 2701(a)(1). With respect to the
      elements of Section 2701(a)(1), we have observed:

         [T]he Commonwealth's burden [to prove] simple assault is
         to show [that the defendant] attempt[ed] to cause, or
         intentionally, knowingly or recklessly cause[d] bodily injury
         to another. “Bodily injury” is defined as impairment of [a]
         physical condition or substantial pain. The Commonwealth
         need not establish that the victim actually suffered bodily
         injury; rather, it is sufficient to support a conviction if the
         Commonwealth establishes an attempt to inflict bodily
         injury. A person commits criminal attempt when he [or
         she] intentionally does any act which constitutes a
         substantial step toward commission of a specific crime.

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          The intent for attempt may be shown by circumstances
          which reasonably suggest that a defendant intended to
          cause injury.

       Commonwealth v. Repko, 817 A.2d 549, 556 (Pa. Super.
       2003), overruled in part on other grounds, Commonwealth v.
       Matthews, 870 A.2d 924 (Pa. Super. 2005) (quotation and
       citations omitted).

Commonwealth v. Emler, 903 A.2d 1273, 1277 (Pa. Super. 2006).

       In this case, Appellant maintains that the evidence was insufficient to

prove the intent element of simple assault because when he threw the pool

ball, he did not intend for it to hit the victim; instead, he threw the ball at

Toby, the man he was arguing with in the bar.

       Appellant’s argument is unconvincing, as the evidence was clearly

sufficient to prove that he at least recklessly caused bodily injury to Ms.

Wilkerson.1 As the trial court explains:

       Under Pennsylvania law:
____________________________________________


1
   We also find Appellant’s argument meritless under the ‘transferred intent
theory.’ See 18 Pa.C.S. § 303(b) (“When intentionally or knowingly causing
a particular result is an element of an offense, the element is not established
if the actual result is not within the intent or the contemplation of the actor
unless: (1) the actual result differs from that designed or contemplated…,
only in the respect that a different person … is injured or affected...[.]”). At
trial, Appellant took the stand and admitted that he threw the pool ball with
the intent to hit Toby. See N.T. Trial, 5/23/16, at 75. Appellant’s intent to
strike Toby with the pool ball can be transferred to Ms. Wilkerson, the
person actually struck by the ball. See Commonwealth v. Thompson,
739 A.2d 1023, 1029-30 (Pa. 1999) (“The transferred intent theory provides
that if the intent to commit a crime exists, this intent can be transferred for
the purpose of finding the intent element of another crime.”) (citation
omitted).




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         A person acts recklessly with respect to a material element
         of an offense when he consciously disregards a substantial
         and unjustifiable risk that the material element exists or
         will result from his conduct. The risk must be of such a
         nature and degree that, considering the nature and intent
         of the actor's conduct and the circumstances known to
         him, its disregard involves a gross deviation from the
         standard of conduct that a reasonable person would
         observe in the actor's situation.

      18 Pa.C.S. § 302(b)(3).           Examining the gravity of the
      circumstances, the jury could reasonably [have] infer[red] that
      [Appellant] grossly deviated from the standard of conduct that a
      reasonable person would observe in his situation.             While
      testifying, [Appellant] himself acknowledged that his behavior on
      this particular night was not the best response to the situation at
      hand. Moreover, on his own admission, [Appellant] threw the
      pool balls across a distance of twelve (12) or fourteen (14) feet,
      when he had been drinking, aimed at a person who was standing
      next to two other individuals. [Appellant] claim[ed] he threw the
      pool balls to “protect himself” from Toby, who was at the time
      twelve (12) or fourteen (14) feet away, because he was holding
      up a stool. However, it is not this [c]ourt’s job to determine the
      credibility of witnesses, their testimony, or to act as a decider of
      fact. To do so would usurp the role of the jury. This [c]ourt
      finds the evidence presented at trial, viewed in [a] light most
      favorable to the Commonwealth, was sufficient to establish
      [Appellant,] at a minimum[,] acted recklessly.

TCO at 8-9 (citations to the record and case law omitted). We agree with

the trial court’s rationale.

      Additionally, the evidence established that Ms. Wilkerson suffered

bodily injury as a result of Appellant’s conduct.      Again, bodily injury is

defined as “[i]mpairment of physical condition or substantial pain.”         18

Pa.C.S. § 2301. Here, the trial court stresses that,

      the pool ball thrown by [Appellant] struck Ms. Wilkerson on the
      left side of her face. As a result, Ms. Wilkerson’s eye swelled
      immediately, and she was taken by ambulance to a hospital.
      Ultimately, Ms. Wilkerson testified that she suffered a skull

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J-S19030-17


      fracture, and [she] suffered several effects to her vision in the
      months following the incident.6 Further, Ms. Wilkerson testified
      that these injuries are the most painful thing she has ever
      endured, and that she experienced pain for several months
      following the incident.
         6
           Specifically, Ms. Wilkerson testified that she had yellow
         vision (essentially a yellow filter on everything), a black
         dot that would go across her eye, and a white flash that
         would go across the bottom of her eye.

Id. at 9-10 (citations to the record omitted).       This evidence was clearly

sufficient to demonstrate that Ms. Wilkerson suffered bodily injury based on

the skull fracture, the impairment of her vision, and/or the substantial pain

she endured.    Accordingly, we agree with Attorney Brink that Appellant’s

challenge to the sufficiency of the evidence is frivolous.

      Next, Appellant seeks to challenge the weight of the evidence to

support his conviction of simple assault. Preliminarily, Appellant has waived

his weight-of-the-evidence claim by failing to raise it orally before

sentencing, in a written motion before sentencing, or in a post-sentence

motion. See Pa.R.Crim.P. 607(A).

      Nevertheless, even had Appellant properly preserved this issue, we

would deem it frivolous. We recognize that,

      [a] claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury's verdict is so contrary to the evidence that it shocks
      one's sense of justice. In determining whether this standard has


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         been met, appellate review is limited to whether the trial judge's
         discretion was properly exercised, and relief will only be granted
         where the facts and inferences of record disclose a palpable
         abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

         Here, Appellant contends that the verdict was against the weight of

the evidence because he was acting in self-defense when he threw the pool

ball at Toby, and “a person who unintentionally injures a third party

bystander while using justifiable force in self-defense cannot be criminally

liable    for   injury   to   the   bystander.”   Anders    Brief   at   16   (citing

Commonwealth v. Fowlin, 710 A.2d 1130, 1134 (Pa. 1998)).

         The trial court rejected Appellant’s argument, noting that the jury was

free to reject Appellant’s claim of self-defense. See TCO at 11. We see no

abuse of discretion in the court’s decision.       The Commonwealth presented

more than adequate evidence to disprove that Appellant was acting in self-

defense, including testimony that Toby was at least 12 feet away from

Appellant when Appellant threw the pool ball at him, and that security

personnel from the bar had intervened and separated the two men before

the ball was thrown.          The fact that Toby was raising a bar stool over his

head at the moment Appellant decided to throw the pool ball does not

demonstrate that Appellant believed that such action was “immediately

necessary for the purpose of protecting himself….”          18 Pa.C.S. § 505(a)

(defining self-defense or justification for the use of force). Accordingly, we

would conclude that the court did not abuse its discretion in rejecting

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Appellant’s challenge to the weight of the evidence, even had he preserved

this issue for our review.

       Finally, Appellant seeks to challenge the discretionary aspects of his

sentence, arguing that the term of incarceration imposed is unduly harsh,

fails to meet his rehabilitative needs, and places an ‘undue burden’ on him

and his family.       See Rule 1925(b) Statement, 8/22/16, at 1.2          Again,

Appellant did not file a post-sentence motion raising these discretionary

aspects of sentencing claims, and he also did not assert them during the

sentencing     proceeding.          Consequently,   they   are   waived.     See

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004) (“Issues

challenging the discretionary aspects of sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings.”).

       In any event, even if properly preserved, and even if we considered

Appellant’s argument as constituting a substantial question for our review,

there is nothing in the record that would lead us to conclude that the trial


____________________________________________


2
  To the extent that Attorney Brink indicates that Appellant wishes to argue
that his sentence is excessive because he demonstrated remorse, acted in
self-defense, and did not intend for the victim to be injured, see Anders
Brief at 17, these specific claims are waived, as they were not presented in
Appellant’s Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues
not included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).




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court abused its discretion in fashioning Appellant’s sentence. As this Court

has repeatedly recognized:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (quoting

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted)).

      In the trial court’s Rule 1925(a) opinion, it provides a thorough and

reasonable explanation for imposing Appellant’s sentence. The court begins

by stressing that it rejected the Commonwealth’s request to impose a deadly

weapon enhancement in this case (based upon considering the pool ball as a

deadly weapon).        See TCO at 12-13.      However, the court did impose

aggravated range sentences for both of Appellant’s offenses. Id. at 13. It

points to the following comments it made at the sentencing hearing as

justification for those sentences:

      [The Court]: Sir, you’re here to be sentenced on two charges for
      which you were convicted by a jury. The simple assault charge
      carries a[n] [offense] gravity score of three. You have a prior
      record score of five, making the standard range of six to 12
      months.

      I am not going to find a deadly weapon was involved since [the]
      standard range is 6 to 12. You are also convicted of disorderly
      conduct[,] [] with a gravity score of one, and, again, a prior


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     record score of five. The standard range for that charge is six
     months.

     I have reviewed the extensive pre-sentence report prepared by
     our Probation Department, as well as sentencing memorandums
     prepared by counsel in this case. I presided over the trial; I
     heard the evidence. I heard what you had to say this morning,
     sir, as well, and I have considered all those things in trying to
     determine the appropriate sentence to fashion in this case.

     There are two things contained within the pre-sentence report
     that affect my decision greatly. The one is the prior record. The
     accounting of your history in the criminal justice system go[es]
     back to 1991 with really no extensive period of time crime-free.

     I asked you about the sentence from the 2006 case because that
     is the last case [and] because I wanted to know how long you
     were incarcerated. If this disposition was in [20]09 and [lasted]
     until 2014, again, that validates the point I’m making that you
     have not lived without committing a new crime [in] the last 25
     years for any extensive period of time, which is quite concerning
     to this [c]ourt, and the crimes have been in multiple
     jurisdictions, Florida, Maryland, North Carolina, Georgia…[.]
     [T]his would be [at least] your fourth jurisdiction with serious
     charges.

     In this case you were not convicted of a felony offense. You
     were convicted of a misdemeanor. I recognize that, but this
     prior history is quite concerning, and I’m trying to determine
     what kind of programming may be beneficial to you so that when
     you’re released from incarceration and from supervision, that
     you will break this pattern of victimizing again in the future….

     So I have considered that factor. I have also considered the
     negative recommendation from Officer Heinz that is included
     within the pre-sentence record.

     Sir, I am finding that you are in need of treatment given your
     prior history. You have previously been in a state system, and
     I’m going to sentence you to the Pennsylvania State System as
     well because I believe that is where you are better suited for
     treatment     alternatives  given  your   history   and   prior
     incarcerations within state systems. Also, recognizing the fact
     that for the state to have sufficient time to provide
     programming, a minimum of 12 months is needed to get you
     through programming in our state correctional institution. So

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       the sentence that I’m going to impose will be sentences that
       account for your prior record, your extensive prior record, and
       also your need for treatment.

TCO at 14-15 (quoting N.T. Sentencing, 6/29/16, at 10-13).

       In light of the reasons proffered by the trial court during the

sentencing hearing, we would not conclude, even had Appellant preserved

his sentencing challenge, that the court abused its discretion in fashioning

his term of incarceration. We acknowledge that his aggregate sentence is

lengthy, given that he was convicted of misdemeanor offenses.         However,

the court provided clear reasons for imposing aggravated range terms -

namely, Appellant’s extensive criminal history, the fact that he had very little

‘crime-free’ time over the past 25 years, and his need for significant

rehabilitation, which the court felt could best be met by a lengthier term of

imprisonment in a state correctional institution.    Given the court’s careful

consideration of “the particular needs” of Appellant, see TCO at 15, we could

not conclude that the court committed a manifest abuse of discretion that

would justify disturbing the sentence it imposed. See Sheller, 961 A.2d at

190.

       Accordingly, we agree with Attorney Brink that each of the issues

Appellant seeks to assert on appeal are frivolous, and our independent

review of the record does not reveal any other, non-frivolous issues he could

present on Appellant’s behalf.       Thus, we grant counsel’s petition to

withdraw.

       Judgment of sentence affirmed. Petition to withdraw granted.


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     President Judge Gantman joins this memorandum.

     President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




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