J-S59026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

RAFFEYELL MOODY

                           Appellant                    No. 3232 EDA 2012


           Appeal from the Judgment of Sentence October 24, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009394-2010


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED October 5, 2016

        Appellant, Raffeyell Moody, appeals from the judgment of sentence

entered on October 24, 2012.           On this direct appeal, Appellant’s court-

appointed counsel filed both a petition to withdraw as counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude

that    Appellant’s   counsel   complied   with   the   procedural   requirements

necessary to affect withdrawal. Moreover, after independently reviewing the

record, we conclude that the instant appeal is wholly frivolous.             We,

therefore, grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

        Appellant’s convictions arose from events that occurred on March 31,

2010.     The night before, Appellant had a series of verbal and physical



*Former Justice specially assigned to the Superior Court.
J-S59026-16



altercations with two brothers in his ex-girlfriend’s house, which continued

through to the next morning.            Appellant later returned with a handgun,

shooting both men in the abdomen, seriously injuring them, before one of

the men disarmed Appellant and forced Appellant to flee the house.         Both

victims required emergency surgery. One sustained permanent injuries that

may cause loss of organ function throughout life, requiring additional

surgery.

       On June 15, 2012, a jury convicted Appellant of two counts of

aggravated assault, one count of carrying a firearm without a license, and

one count of possessing an instrument of crime.1 On October 24, 2012, the

trial court sentenced Appellant to serve an aggregate term of 23½ to 47

years in prison, followed by five years of probation, for his convictions.

Appellant’s aggregate sentence consisted of two consecutive 10 to 20 year

terms of imprisonment for his aggravated assault convictions.             These

particular sentences fell within the standard sentencing guideline ranges,

after the trial court considered the “deadly weapon enhancement” provision

of the sentencing guidelines.         See N.T. Sentencing, 10/24/12, at 5; 204

Pa.Code § 303.10. Appellant did not file a post-sentence motion; however,

Appellant filed a timely notice of appeal to this Court.



____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), and 907(a), respectively.




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      On appeal, Appellant’s court-appointed counsel filed a petition for

leave to withdraw and accompanied this petition with an Anders brief.

Counsel’s Anders brief raises three potential appellate claims (all of which

counsel deemed to be frivolous): 1) the evidence was insufficient to support

Appellant’s convictions; 2) the verdict was against the weight of the

evidence; and, 3) the trial court abused its discretion in sentencing Appellant

to an excessive aggregate term of incarceration. See Anders Brief at 16.

Moreover, Appellant filed a timely, pro se response to counsel’s petition for

leave to withdraw and, within Appellant’s pro se response, Appellant

contends that he was sentenced to unconstitutional mandatory minimum

terms of incarceration under 42 Pa.C.S.A. § 9712, and that his sentence is

thus illegal under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151

(2013).

      Before reviewing the merits of this appeal, this Court must first

determine whether appointed counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.   First, counsel must “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.”

Miller, 715 A.2d at 1207.    Second, counsel must file an Anders brief, in

which counsel:

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         (1) provide[s] a summary of the procedural history and
         facts, with citations to the record; (2) refer[s] to anything in
         the record that counsel believes arguably supports the
         appeal; (3) set[s] forth counsel’s conclusion that the appeal
         is frivolous; and (4) state[s] 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.

      Finally, counsel must furnish a copy of the Anders brief to his or her

client and advise the client “of [the client’s] right to retain new counsel,

proceed pro se or raise any additional points worthy of this Court’s

attention.”    Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.

2007).

      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. It is only

when all of the procedural and substantive requirements are satisfied that

counsel will be permitted to withdraw.

      In the case at bar, counsel has met all of the above procedural

obligations.    We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous. Before analyzing the issues

presented in the Anders brief, we will review Appellant’s challenge to the




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legality of his sentence, which he raises in his response to counsel’s petition

to withdraw.

      Appellant raises a single claim for relief:

        4) Appellant is currently sentenced under the Mandatory
        Minimum Sentencing Statute, [42 Pa.C.S.A. § 9712]
        (sentences for offenses committed with firearms) where
        multiple procedural provisions within the statute are facially
        unconstitutional pursuant to [Alleyne, 133 S.Ct. at 2151],
        and cannot properly be severed from the remaining statute
        (now    repealed),   thereby    rendering    application    in
        [Appellant’s] case of the mandatory minimum sentence of
        10 to 20 years incarceration under this statute
        unconstitutional

        5) As this Court is well aware, the now repealed mandatory
        minimum sentencing statute, [42 Pa.C.S.A. § 9712]
        [regarding] sentences for offenses committed with firearms
        has been declared void and unenforceable.

        6) In light of the constitutional pronouncement in Alleyne,
        our     courts    systematically    have    been    declaring
        unconstitutional    Pennsylvania’s    mandatory     minimum
        sentencing statutes that permit a trial court rather than a
        jury, to make critical factual findings at sentencing. [string
        citation omitted].

Appellant’s Response to Counsel’s Petition to Withdraw, 4/29/16, at 1-2.

      In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held: “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States

Supreme Court expanded “Apprendi’s basic jury-determination rule to

mandatory minimum sentences.”         Alleyne, ___ U.S. at ___, 133 S.Ct. at

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2167 (Breyer, J., concurring).    Specifically, the Alleyne court held that,

where an “aggravating fact” increases a mandatory minimum sentence, “the

fact is an element of a distinct and aggravated crime.     [The fact] must,

therefore, be submitted to the jury and found beyond a reasonable doubt.”

Alleyne, 133 S.Ct. at 2162-2163. As this Court held, Alleyne rendered 42

Pa.C.S.A. § 9712 wholly unconstitutional.   Commonwealth v. Valentine,

101 A.3d 801, 812 (Pa. Super. 2014).

        Alleyne challenges implicate the legality of a sentence. A
        challenge to the legality of a sentence may be entertained
        as long as the reviewing court has jurisdiction. An illegal
        sentence must be vacated. Issues relating to the legality of
        a sentence are questions of law. Our standard of review
        over such questions is de novo and our scope of review is
        plenary.

Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal

citations, quotations, and corrections omitted), appeal pending on other

grounds, 127 A.3d 1286 (Pa. 2015). Challenges to the legality of a sentence

are non-waivable. Commonwealth v. Leverette, 911 A.2d 998, 1002 (Pa.

Super. 2006).

     In the present case, Appellant failed to present a claim meriting relief

under Alleyne because the trial court did not sentence Appellant under

Section 9712.

     At the time, for the trial court to have sentenced Appellant to a

mandatory minimum term under Section 9712, the Commonwealth was

required to:    give Appellant reasonable notice that it intended to proceed



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under Section 9712; demand that the trial court sentence Appellant to the

mandatory sentencing term; and, demonstrate to the trial court, by a

preponderance of the evidence, that the sentencing provision was applicable

to the case. 42 Pa.C.S.A. § 9712; Valentine, 101 A.3d at 809. The record

reveals that the Commonwealth never provided Appellant with notice that it

intended to seek a mandatory minimum term of incarceration or requested

that the trial court impose upon Appellant a mandatory minimum sentence

under Section 9712.          To be sure, at the sentencing hearing, the

Commonwealth repeatedly asked the court to apply the “deadly weapon

enhancement” – found in the sentencing guidelines – to sentence Appellant.

N.T. Sentencing, 10/24/12, at 5, 7-8, and 24; 204 Pa.Code § 303.10; see

also Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa.

Super. 2014) (en banc) (holding that the “deadly weapon enhancement,”

found at 204 Pa.Code § 303.10, is not unconstitutional under either Alleyne

or Apprendi).

      As there is no evidence that the trial court sentenced Appellant under

the now constitutionally infirm sentencing statute (indeed all of the evidence

demonstrates that Appellant was sentenced to a standard range sentence,

after application of the “deadly weapon enhancement”), Appellant’s claim on

appeal warrants no relief.

      We now review the claims raised within the Anders brief:

        1) The evidence was insufficient to support the charges;

        2) The verdicts were against the weight of the evidence;

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         3) The trial court committed an abuse of discretion by
         imposing a sentence of [23 ½ to 47] years[’] incarceration
         on Appellant.

Anders Brief at 16 (capitalization altered from original).

      Appellant first claims that the evidence was insufficient to support his

convictions for aggravated assault, carrying a firearm without a license, and

possessing an instrument of crime.       Anders Brief at 16.     This claim is

frivolous.

      We review a challenge to evidentiary sufficiency as follows:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt.             In
         applying the above test, we may not weigh the evidence
         and substitute our judgment for [that of] the fact-finder. In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter of
         law no probability of fact may be drawn from the combined
         circumstances. The Commonwealth may sustain its burden
         of proving every element of the crime beyond a reasonable
         doubt by means of wholly circumstantial evidence.
         Moreover, in applying the above test, the entire record must
         be evaluated and all evidence actually received must be
         considered. Finally, the trier of fact while passing upon the
         credibility of witnesses and the weight of the evidence
         produced, is free to believe all, part or none of the
         evidence.




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Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa.

Super. 2008).

      The Pennsylvania Crimes Code defines aggravated assault, in relevant

part, as follows:

        (a) A person is guilty of aggravated assault if he:

        (1) 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)(1). The Crimes Code defines “serious bodily injury”

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.” 18 Pa.C.S.A. § 2301.

      The trial court aptly summarized the evidence produced by at trial:

        The Commonwealth presented the testimony of Courtney
        Henry. . . . Ms. Henry [testified] that she and [victim,
        Brian] Buelah ran downstairs after hearing a lot of
        commotion.     At that time, she testified[,] she saw []
        Appellant inside her home engaged in an argument and
        possible fight with Shawn McKinnon. After Brian Buelah
        broke up the fight, Ms. Henry [testified] that [] Appellant,
        who appeared to be highly upset, made a threat to Mr.
        McKinnon’s life before leaving her home. A short time later,
        Ms. Henry testified that [] Appellant returned to her home.
        Upon seeing [] Appellant reach for the back of his pants,
        Ms. Henry, fearing that he was armed, ran for cover in her
        basement door corridor. Less than a minute later, Ms.
        Henry’s fear was confirmed when she heard [four or five]
        gunshots followed by screaming from either Mr. Buelah or
        Mr. McKinnon.


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       Brian Buelah testified that, on the morning of [March] 31,
       2010, he was upstairs with Ms. Henry at her home. After
       hearing rumbling, Mr. Buelah testified that he went
       downstairs whereupon he saw [] Appellant standing over his
       brother, Shawn McKinnon. After seeing them wrestling or
       fighting, Mr. Buelah stated that he pulled [] Appellant off of
       his brother after which [] Appellant left the home. Mr.
       Buelah testified that [] Appellant returned about a minute
       later with a gun.      Mr. Buelah further testified that []
       Appellant approached him and shot him in the stomach.
       According to Mr. Buelah, [] Appellant then raised his gun
       and shot his brother, Shawn McKinnon. Mr. Buelah stated
       that he then was able to wrestle the gun away from []
       Appellant. He then testified that he saw his brother [lying]
       on the floor. Mr. Buelah stated that he and his brother got
       into his Jeep and drove to the hospital. Mr. Buelah testified
       that he still had the gun taken from [] Appellant[,] which he
       put into his Jeep.

                                    ...

       Detective Dom Suchinsky testified that he was assigned to
       investigate the shooting of March 31, 2012. On that date[,]
       he prepared and executed a search warrant for the Isuzu
       Rodeo Jeep [driven by Mr. Buelah, with Mr. McKinnon, to
       the hospital] and recovered a .38 caliber Taurus revolver
       underneath the rear passenger seat. Finally, Detective
       Suchinsky testified that he presented both Brian Buelah and
       Shawn McKinnon with photo arrays from which both males
       made a positive identification of [] Appellant as the person
       who shot them.

       The Commonwealth also presented testimony from Doctor
       Jay James Strain, an expert in the field of trauma surgery
       and critical care surgery. On March 31, 2010, Dr. Strain
       was working as the chief surgical attendant at Albert
       Einstein Medical Center where he recalled Brian Buelah and
       Shawn McKinnon coming into the emergency room with
       gunshot wounds. Dr. Strain stated that Shawn McKinnon
       had a gunshot wound that went from his lower left
       abdomen, about 2 inches above belt level, and exited
       through his buttocks. Because the nature of his condition
       caused concern for injury to his internal organs, exploratory
       surgery was performed. Dr. Strain testified that the surgery

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J-S59026-16


        revealed that the bullet went approximately half an inch
        between two major vascular structures.              Dr. Strain
        explained that if the bullet had gone a half an inch to the
        right, it would [] have led to either death or severe
        disability. Dr. Strain further testified that an examination of
        Brian Buelah revealed an entry point in the same location of
        the abdomen.        Unfortunately[,] the bullet struck and
        completely transected a major vessel which provides a huge
        amount of blood supply to the central abdomen and lower
        pelvis.    Dr. Strain stated that emergency surgery was
        needed to be performed on Mr. Buelah to repair his artery,
        bowel, and bladder. Dr. Strain explained that he performed
        “damage control surgery” on Mr. Buelah after which he was
        left with only 50% of the blood vessels which are
        responsible for providing most of the blood supply to the
        central abdomen.       Finally, Dr. Strain testified that Mr.
        Buelah had a lifetime risk of having pain and difficulty
        walking, risk of impotence and loss of [penile] function.
        Also, Mr. Buelah had a lifetime, one in four, chance of
        requiring further surgery to his bowel.

Trial Court Opinion, 12/27/13, at 2-5 (internal citations omitted).

      Applying the standard articulated in Brown, the evidence is clearly

sufficient to sustain Appellant’s two convictions for aggravated assault. The

evidence shows that Appellant specifically intended to cause two injuries that

created a substantial risk of death, serious permanent disfigurement, or

protracted loss or impairment of a bodily function or organ.              See 18

Pa.C.S.A. § 2702(a)(1); 18 Pa.C.S.A. § 2301.        Use of a deadly weapon

against another evinces a specific intent to commit serious bodily injury.

See, e.g., Commonwealth v. Galindes, 786 A.2d 1004, 1012 (Pa. Super.

2001) (the circumstances, plus the act of firing a weapon toward another

person, shows the intent to cause serious bodily injury). The testimony of

Mr. Buelah, Mr. McKinnon, and Ms. Henry, if credited by the jury, is sufficient

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to identify Appellant as the assailant and to establish that he shot both

victims.    The testimony of Dr. Strain is sufficient to show that the bullet

wounds posed a substantial risk of death and loss of bodily function to both

men.       Viewed in the light most favorable to the Commonwealth, the

evidence is unquestionably sufficient to sustain Appellant’s conviction for

both counts of aggravated assault.             See Brown, 23 A.3d at 559-60.

Appellant’s claim is frivolous.

       We now turn to the evidence supporting Appellant’s convictions for

carrying a firearm without a license and possessing an instrument of crime.2

       The Crimes Code defines the offense of carrying a firearm without a

license as follows:

           Except as provided in paragraph (2), any person who
           carries a firearm in any vehicle or any person who carries a
           firearm concealed on or about his person, except in his
           place of abode or fixed place of business, without a valid
           and lawfully issued license under this chapter commits a
           felony of the third degree.

18 Pa.C.S.A. § 6106(a)(1).

       The Commonwealth sufficiently established that Appellant carried a

firearm on his person without a license. First, the Commonwealth produced

a certificate of non-licensure for Appellant. N.T. Trial, 6/13/12, at 55. The

testimony of Mr. Buelah and Mr. McKinnon, identifying Appellant as the
____________________________________________


2
  We note that appointed counsel does not address the evidentiary
sufficiency of these convictions in his Anders brief. See Anders Brief at
17-18.



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J-S59026-16


person who shot them, together with Ms. Henry’s testimony wherein she

recalled Appellant reaching for what appeared to be a handgun inside his

pants,   is   sufficient   to   place   the   weapon   in   his   possession.   See

Commonwealth v. Priest, 18 A.3d 1235, 1239-1240 (Pa. Super. 2011).

      Regarding Appellant’s conviction for possession of an instrument of

crime, “our Supreme Court has long held that an appellant’s use of a loaded

gun on his victim[s] is more than sufficient to establish his guilt of

possession of an instrument of crime.” Commonwealth v. Santiago, 980

A.2d 659, 662 (Pa. Super. 2009) (citing 18 Pa.C.S.A. § 907(a)).                 The

testimony of the witnesses, viewed in the light most favorable to the

Commonwealth, shows that Appellant fired a handgun at Mr. Buelah and Mr.

McKinnon; as such, Appellant’s claim of evidentiary insufficiency is frivolous.

      We now approach Appellant’s challenges to the weight of the evidence

and to the discretionary aspects of his sentence. Both issues are waived.

      An appellant must preserve his or her weight of the evidence claim by

raising an objection before the trial court. Commonwealth v. Sherwood,

982 A.2d 483, 494 (Pa. 2009); Pa.R.Crim.P. 607(a). One may not raise a

challenge to the weight of the evidence for the first time on appeal.

Sherwood, 982 A.2d at 494.

         A claim that the verdict was against the weight of the
         evidence shall be raised with the trial judge in a motion for
         a new trial: (1) orally, on the record, at any time before
         sentencing; (2) by written motion at any time before
         sentencing; or (3) in a post-sentence motion. The purpose
         of this rule is to make it clear that a challenge to the weight

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          of the evidence must be raised with the trial judge or it will
          be waived.

Id. at 494 n.22.

        Appellant did not orally challenge the weight of the evidence to the

trial court and Appellant did not file a post-sentence motion.       Therefore,

Appellant has waived any such attack on the judgment of sentence.

        Similarly, review of the discretionary aspects of a sentence is not

automatic.     Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa. Super.

2003).    An appellant waives a discretionary aspect of sentencing claim by

failing to file a post-sentence motion or orally presenting the claim to the

trial   court during   the   sentencing   proceedings.    Commonwealth v.

Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006). If either of these is not

done, we may not consider the issue on appeal.             Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

        Appellant filed no post-sentence motions. Our review of the transcript

of the sentencing proceedings shows that Appellant made no oral objections

to the discretionary aspects of his sentence. Therefore, Appellant’s claim is

waived.

        We have independently considered the issues raised within Appellant’s

brief and Appellant’s response to appointed counsel’s petition to withdraw,

and we have determined that they are either frivolous or waived.            In

addition, after an independent review of the entire record, we see nothing

that might arguably support this appeal.       The appeal is therefore wholly

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frivolous. Accordingly, we affirm Appellant’s judgment of sentence and grant

counsel’s petition to withdraw appearance.

      Petition to withdraw appearance granted.      Judgment of sentence

affirmed. Jurisdiction relinquished.


      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




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