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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA

                  v.


    LEPATRICK SMITH

                         Appellant                :     No. 3513 EDA 2018

      Appeal from the Judgment of Sentence Entered September 30, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000322-2014

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

MEMORANDUM BY LAZARUS, J.:                                      FILED JUNE 3, 2019

        Lepatrick Smith appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after he was convicted,

following   a   nonjury trial, of aggravated assault,' unlawful restraint,2 terroristic

threats,3       simple   assault4    and   recklessly   endangering   another   person

("REAP").5         Counsel   has     petitioned this Court to withdraw from his




'   18 Pa.C.S.A. § 2702(a).

2   18 Pa.C.S.A. § 2902(a)(1).

3   18 Pa.C.S.A. § 2706(a)(1).

4   18 Pa.C.S.A. § 2701(a)(1).

5   18 Pa.C.S.A. § 2705.



      Former Justice specially assigned to the Superior Court.
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representation of Smith pursuant to Anders.6 Upon review, we affirm Smith's

judgment of sentence and grant counsel's petition to withdraw.
        The trial court set forth the facts of this matter as follows:

        On October 6, 2013,    [Smith] solicited a prostitute near Church
        [Street] and Frankford Avenue in Philadelphia. He then drove her
        to another location where the complainant indicated that he forced
        her to perform oral sex on him by grabbing her neck during which
        she bit his penis. He then commenced to punch her numerous
        times on the left side of her head and her body.            At some
                                                                       .   .   .


        point the complainant managed to flee [Smith's] vehicle and                .   .   .


        get the attention of a nearby resident, who called the police. Upon
        the arrival of the police, the complainant was taken to a nearby
        hospital where she was treated for a broken rib,   . facial bruising,
                                                               .   .


        and a collapsed lung.

        Subsequent thereto, police obtained a video recording from a
        camera in the area where [Smith] parked his car and had
        assaulted the complainant. It showed a vehicle described by the
        complainant and also a black male exit the vehicle for a short time
        and then get back into the car and drive away.

        Based on an incident involving the police that occurred the
        previous day, police identified [Smith] as complainant's assailant.
        On October 17, 2013, police detectives met with the complainant
        and conducted a photographic identification session with her. She
        positively identified a photograph of [Smith] as depicting the
        individual who assaulted her.

Trial Court Statement, 1/3/19, at 2-3.

        The Honorable Jeffrey       P.   Minehart found Smith guilty of the above

offenses on July 7, 2016 and, on September 30, 2016, the trial court

sentenced him to an aggregate term of 12 to 24 years' incarceration followed



6   Anders   v.   California, 386   U.S. 738 (1967).




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by five years of probation.          Smith did not appeal.       However, Smith filed      a

petition pursuant to the Post Conviction Relief Act,' after which his appellate

rights were reinstated nunc pro tunc. Smith filed            a   notice of appeal and the

trial court ordered him to file       a   statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On December 27, 2018, Smith's counsel filed

a   statement of intent to file an Anders brief pursuant to Rule 1925(c)(4).

        Smith raises the following issue for our review:

        Whether the trial court erred in entering a finding of guilty against
        [Smith] for the crimes of aggravated assault, unlawful
        restraint/serious bodily injury, terroristic threats w/int[ent] to
        terrorize another, simple assault and [REAP] because the evidence
        introduced at trial was insufficient to support such findings?
Anders Brief, at      9   (unnecessary capitalization omitted).

        Prior to reviewing Smith's claim, we must determine if counsel has

complied with the procedural requirements for withdrawal.                     In order to

withdraw pursuant to Anders, counsel must: (1) petition the Court for leave

to withdraw, certifying that after        a   thorough review of the record, counsel has

concluded the issues to be raised are wholly frivolous; (2) file         a   brief referring

to anything in the record that might arguably support an appeal; and (3)

furnish   a   copy of the brief to the appellant and advise him of his right to obtain

new counsel or file         a   pro se brief raising any additional points that the

appellant deems worthy of review.                Commonwealth v. Hernandez, 783
A.2d 784, 786 (Pa. Super. 2001). In Commonwealth v. Santiago, 978 A.2d



    42 Pa.C.S.A. §§ 9541-9546.

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349 (Pa. 2009), the Pennsylvania Supreme Court held that, in order to

withdraw under Anders, counsel must also state his reasons for concluding

his client's appeal is frivolous.

        Instantly, counsel's petition states that he has made an exhaustive

examination of the record and concluded the appeal                  is   wholly frivolous.

Counsel indicates that he supplied Smith with          a   copy of the Anders brief and

a    letter explaining his right to proceed pro se, or with privately -retained

counsel, and to raise any other issues he believes might have merit. Counsel's

brief sets out   a   single issue of arguable merit and, pursuant to the dictates of

Santiago, explains why        he believes the appeal to be frivolous. Thus, counsel

has substantially complied with the requirements for withdrawal.

        Smith did not file    a   substantive response to counsel's Anders brief,

raising any issues he believed to be meritorious. Rather, on April 23, 2019,

Smith filed with this Court       a   motion to proceed pro se. On April 25, 2019, we

issued an order granting Smith 30 days to file his response, if any, to counsel's

Anders brief.        On May 9, 2019, Smith filed a document in which he agreed

that counsel should withdraw and expressed his desire to proceed pro se.               He

did not, however, raise any potentially meritorious appellate claims.

        Counsel's application to withdraw properly informed Smith of his right

to "retain new counsel, or to proceed pro se, or to raise any point(s) he may

deem worthy of consideration." Petition to Withdraw, at ¶ 6.                 Additionally,

after Smith filed his motion to proceed pro se, this Court provided him with



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another opportunity to submit         a    response to counsel's Anders brief. He did

not do so.

        While this [C]ourt is willing to liberally construe materials filed by
        a pro se litigant, [an] appellant is not entitled to any particular
        advantage because [he] lacks legal training. As our [S]upreme
        [C]ourt has explained, "any layperson choosing to represent
        himself in a legal proceeding must, to some reasonable extent,
        assume the risk that his lack of expertise and legal training will
        prove his undoing."
Smathers v. Smathers, 670 A.2d 1159                       (Pa.   Super. 1996)   (citations

omitted).

        Smith was given multiple chances to raise any claims he deemed worthy

or review; he failed at each opportunity. Accordingly, as counsel has satisfied

the procedural requirements for withdrawal, we will proceed with our

independent review of the proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.              Commonwealth v.
Wright, 846 A.2d 730, 736          (Pa. Super. 2004).

        In his Anders brief, counsel raised        a   challenge to the sufficiency of the

evidence supporting Smith's convictions.                   Our standard of review of

sufficiency claims   is   well -settled:

        A claim challenging the sufficiency of the evidence is a question of
        law. Evidence will be deemed sufficient to support the verdict
        when it establishes each material element of the crime charged
        and the commission thereof by the accused, beyond a reasonable
        doubt. Where the evidence offered to support the verdict is in
        contradiction to the physical facts, in contravention to human
        experience and the laws of nature, then the evidence is insufficient
        as a matter of law. When reviewing a sufficiency claim[,] the court
        is required to view the evidence in the light most favorable to the




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        verdict winner giving the prosecution the benefit of all reasonable
        inferences to be drawn from the evidence.
Commonwealth v. McClelland, 204 A.3d 436, 441                             (Pa. Super. 2019),

quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

        A person commits the offense 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.A.              §   2702(a).

        A person commits the offense of unlawful                     restraint if he knowingly

restrains another unlawfully in circumstances exposing him to risk of serious

bodily injury. 18 Pa.C.S.A.       §   2902(a)(1).

        A person commits the crime of             terroristic threats if he communicates,

either directly or indirectly,        a   threat to commit any crime of violence with

intent to terrorize another. 18 Pa.C.S.A.             §   2706(a)(1).
        A person is      guilty of assault if he attempts to cause or intentionally,

knowingly or recklessly causes bodily injury to another.                       18 Pa.C.S.A. §

2701(a)(1).
        Finally,   a   person commits the offense of REAP if he recklessly engages

in   conduct which places or may place another person in danger of death or

serious bodily injury. 18 Pa.C.S.A.           §   2705.

        Here, the evidence adduced at trial established that Smith solicited the

victim for oral sex. The victim attempted to perform the act, but Smith was

unable to achieve an erection.             When the victim asked Smith if there was

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"something that [she] could do to help him out," N.T Trial, 7/7/16, at 16,

Smith began "hitting [her] over and over again from [her] face down to [her]

ribs," puncturing her lung, breaking her rib, and rupturing her eardrum. Id.

at 17-18.    Smith also choked her on three occasions. While he was beating

the victim, Smith achieved an erection and tried to force her to perform oral

sex. During the ensuing struggle, the victim unsuccessfully attempted to kick

out the windshield to Smith's car. She was finally able to escape the vehicle,

at which point Smith threatened to kill her if she sought help from the nearby

houses. See id. at 48-49.

        Based on the foregoing, and viewed in the light most favorable to the

Commonwealth as verdict -winner, McClelland, supra, the evidence was

sufficient to establish the elements of the cited offenses. Smith   is   entitled to

no relief.

        Judgment of sentence affirmed; petition to withdraw granted.

Judgment Entered.




J seph D. Seletyn,
Prothonotary



Date: 6/3/19




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