J-S77004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT
                                                                   OF
                                                              PENNSYLVANIA
                              Appellee

                        v.

    TORY XAVIER SHUMAN,

                              Appellant                      No. 962 MDA 2017


         Appeal from the Judgment of Sentence Entered April 12, 2017
              In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0001569-2016


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

MEMORANDUM BY BENDER, P.J.E.:                                  FILED MAY 01, 2018

        Appellant, Tory Xavier Shuman, appeals from the judgment of sentence

of one to twelve months’ incarceration, imposed after he was convicted by a

jury of simple assault, 18 Pa.C.S. § 2701, and recklessly endangering another

person (REAP), 18 P.C.S. § 2705. Appellant seeks to challenge the sufficiency

of the evidence to sustain his conviction of simple assault.               Additionally,

Appellant’s    counsel,      Kent   D.    Watkins,   Esq.,   seeks   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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      Appellant was convicted of the above-stated charges following a jury

trial on February 6, 2017. On April 12, 2017, he was sentenced to 1 to 12

months’ incarceration for his simple assault offense. His conviction for REAP

merged for sentencing purposes.    Appellant filed a timely notice of appeal

from the imposition of his sentence. On May 19, 2017, the court issued an

order directing Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant timely complied with that order,

filing a concise statement that raised the following claim: “There was

insufficient evidence of intent to support a finding of simple assault.     The

verdict is contrary to law.” Rule 1925(b) Statement, 6/13/17, at 1 (single

page). On June 28, 2017, the trial court filed a Rule 1925(a) opinion.

      On September 26, 2017, Attorney Watkins filed with this Court an

“Application to Withdraw As Counsel,” as well as a “no merit” letter pursuant

to   Commonwealth       v.   Turner,   544   A.2d    927    (Pa.   1988),   and

Commonwealth v. Finley,         550    A.2d 213     (Pa.   Super. 1988).     A

Turner/Finley no merit letter is the proper filing where counsel seeks to

withdraw on appeal from the denial of post-conviction relief; however, where,

as here, counsel seeks to withdraw on direct appeal, he or she must comply

with the more stringent dictates of Anders/Santiago. See Commonwealth

v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).          Consequently, on

October 4, 2017, this Court issued an order directing Attorney Watkins to

comply with Anders/Santiago by filing a brief referring to any issues that

might arguably support Appellant’s appeal.

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      On November 2, 2017, Attorney Watkins filed an Anders brief.

Thereafter, upon reviewing the record in this case, we ascertained that counsel

had not filed a proof of service demonstrating that he had served Appellant

with his petition to withdraw and Anders brief. Accordingly, on February 22,

2018, this Court filed a memorandum decision directing Attorney Watkins to

file that proof of service. On April 6, 2018, counsel complied with that order,

demonstrating that he has provided Appellant with a copy of the pertinent

documents via first class mail.

      Thus, we will now review whether Attorney Watkins has satisfied the

other requirements for withdrawal.         Our Court has explained those

requirements, as follows:

      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
         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.”

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      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, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied the technical requirements of

Anders/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 Watkins’ Anders brief substantially complies with

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

relevant factual and procedural history, and he refers to portions of the record

that could arguably support Appellant’s claim. While Attorney Watkins does

not specifically state in his Anders brief that Appellant’s appeal is frivolous,

his discussion of why Appellant’s sufficiency-of-the-evidence challenge fails is

adequate to convey that counsel has made a determination of frivolity.

Counsel also explains his reasons for reaching that determination, and

supports his rationale with citations to the record and pertinent legal authority.

Again, as discussed, supra, Attorney Watkins has filed a proof of service

demonstrating that he has sent Appellant copies of the Anders brief and his

petition to withdraw. In counsel’s petition to withdraw, he advises Appellant

of the rights enumerated in Nischan. Accordingly, we conclude that counsel

has substantially complied with the technical requirements for withdrawal.

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

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

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he could pursue on appeal. First, we set forth our well-settled standard of

review:

            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).

      Here, Appellant contends that the Commonwealth failed to present

sufficient evidence to sustain his conviction of simple assault, defined as

follows:

      (a) Offense defined.-- Except as provided under section 2702
      (relating to aggravated assault), a person is guilty of assault if he:

                                        …

           (3) attempts by physical menace to put another in fear of
           imminent serious bodily injury[.]

18 Pa.C.S. § 2701(a)(3).

      According to Appellant, the Commonwealth did not demonstrate that he

had the intent to place the victim in fear of serious bodily injury. The record

clearly belies this claim. As the trial court summarizes:

             At trial, Alberto Rosario testified that [Appellant] invited
      Willie Velazquez to fight and then took out a pistol and said, “Look
      what I have for you.” Velazquez then retreated into his house
      followed by [Appellant,] who pointed his gun at Velazquez’s head.
      (N.T.[, at] 14[-1]6).

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            Magali Serrano testified that she saw [Appellant] point a gun
      at Velazquez’s face, cock the weapon, and tell Velazquez that he
      was going to blow his head off. ([Id. at] 22-24).

            Velazquez testified that [Appellant] pointed a gun at his
      face, followed him into [his] house, and threatened to blow his
      head off. ([Id. at] 32).

Trial Court Opinion, 6/28/17, at 2.

      In light of the testimony of these three witnesses, the Commonwealth’s

evidence was clearly sufficient to prove that Appellant intended to place

Velazquez in fear of serious bodily injury when he pointed a gun at Velazquez’s

head, cocked the weapon, and threatened to “blow [Velazquez’s] head off.”

N.T. at 32. “[T]he act of pointing a gun at another person [can] constitute

simple assault as an attempt by physical menace to put another in fear of

imminent serious bodily injury.”      Commonwealth v. Reynolds, 835 A.2d

720, 726 (Pa. Super. 2003) (citation omitted). In Reynolds, this Court held

that Reynold’s act of “pointing [a] gun at the victims and threatening their

lives” was sufficient evidence of “his intent to place the victims ‘in fear of

imminent seriously bodily injury through the use of menacing or frightening

activity.’” Id. at 727 (quoting Commonwealth v. Repko, 817 A.2d 549, 554

(Pa. Super. 2003)).    Pursuant to Reynolds, we conclude that Appellant’s

conduct in the present case was sufficient to demonstrate that he intended to

place Velazquez in fear of imminent serious bodily injury.

      Therefore, we agree with Attorney Watkins that the issue Appellant

seeks to raise on appeal is frivolous. Additionally, our independent review of

the record does not reveal any other, non-frivolous claims that Appellant could


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raise herein. Consequently, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

      Judge Lazarus joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/01/2018




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