J-S48039-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                   Appellee                 :
                                            :
                      v.                    :
                                            :
JUAN SANCHEZ,                               :
                                            :
                   Appellant                :   No. 1401 EDA 2018

           Appeal from the Judgment of Sentence March 23, 2018
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005796-2017

BEFORE:     BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED OCTOBER 16, 2019

      Juan Sanchez (Appellant) appeals from the March 23, 2018 aggregate

judgment of sentence of 15 to 30 months of imprisonment after he was found

guilty of simple assault and recklessly endangering another person (REAP).

Counsel has filed a petition to withdraw and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967). We affirm Appellant’s judgment of sentence

and grant counsel’s petition to withdraw.

      In June 2017, Appellant was arrested and charged with aggravated

assault, simple assault, and REAP.    These charges arose from a domestic

violence incident between Appellant and his then-girlfriend, B.T. Eventually,

Appellant proceeded to a non-jury trial. We begin with a summary of the facts

presented at Appellant’s trial.




*Retired Senior Judge assigned to the Superior Court.
J-S48039-19

      B.T. testified that on the evening of June 18, 2017, B.T. and Appellant

were together at the home they shared.1 N.T., 10/27/2017, at 11-12. B.T.

testified that she and Appellant began arguing about Appellant’s infidelity. Id.

at 12. B.T. stated that the argument was precipitated by Appellant’s wanting

to have sex with her, and B.T. not wanting “to have sex with him.” Id. The

argument spilled over to the next day and, although Appellant and B.T

eventually left the home separately, they continued arguing over the phone

“back and forth” the “whole day.” Id. at 13. B.T. testified that at some point

during their argument, she requested Appellant meet her back at home so she

could collect her belongings. Id. B.T. explained she requested Appellant meet

her at the home because she had previously lost her keys and needed

Appellant to let her in. Id.

      B.T. testified that when she arrived at the home, she and Appellant

      kept arguing. [Appellant] kept telling [sic] me just all different
      kind [sic] of names. We w[ere] arguing for about a good hour back
      and forth. He was calling me names. We [were] back and forth
      arguing.

            After we started arguing, I went upstairs. I got a phone call.
      My ex-boyfriend was calling to check on my brother. My brother
      was incarcerated. He sent him $200.00. He wanted to make sure
      that my brother did get the money.

             That’s when [Appellant] went off. He started punching me
      in the face, dragging me, just beating me up from the front room
      all the way to the hallway. He was beating me up. At the time I




1
 B.T. testified that, while she and Appellant lived together, only Appellant’s
name was on the lease. N.T., 10/27/2017, at 13.

                                     -2-
J-S48039-19


      was on crutches.[2] I couldn’t [sic] even barely walk. I had staples.
      I had over 40 staples in my right hip. So he was dragging me and
      punching me. He would not stop. So when I fell on the ground,
      and I fel[l] unconscious for about a minute or two, I was able to
      get up. Once I got up, I picked up the first thing that I [saw so]
      he would stop hitting me, so I picked up a crowbar and hit
      [Appellant] with it.

      After that[, Appellant] threw me down the steps, because now he
      wants me out of the house. So it was poor [sic] raining. When he
      threw me down the steps, he ripped my clothes. My shirt was
      ripped. Now, he[ is] telling me to get out. I fell again outside.
      Three steps outside, I fell from the rain.

Id. at 14-15.

      B.T. testified that once outside, her friend Carmen, whom B.T. had called

earlier to assist in removing B.T.’s belongings from the home, arrived. Upon

seeing “all of the bruises and the bleeding[,]” Carmen called the police. Id.

at 15-16. The police arrived shortly thereafter, but by that time, Appellant

had already left the area.3 Id. at 15.

      Next, Officer Christopher Rycek testified that he and his partner, Officer

Keen, responded to a “priority” dispatch call of “[a] person screaming[.]” Id.

at 44. Officer Rycek testified that upon arriving to the scene, he was flagged

down by B.T., who told the officers “she had just been assaulted by her



2
 B.T. testified that prior to this altercation she had been in a car accident and,
as a result, had to undergo hip surgery. N.T., 10/27/2017, at 12. At the time
of the assault, she was still recovering from surgery. Id. at 16.
3
  At the end of B.T.’s testimony, the Commonwealth entered several
photographic exhibits into evidence, which B.T. testified portrayed how she
looked after the assault. Id. at 17-21. The photographs depicted numerous
bruises, contusions and torn clothing.


                                      -3-
J-S48039-19

boyfriend, [Appellant].” Id. at 44. Officer Rycek testified that B.T. told him

that Appellant had become physically violent towards her. Specifically, B.T.

told Officer Rycek that Appellant had punched her numerous times in the face,

grabbed her, pulled her hair, pushed her down the stairs, kicked her and

ripped her shirt and pants. Id. at 44-45. Officer Rycek testified that during

his contact with B.T., he observed that

      she had numerous scratches and marks to her face. Also, [] she
      had what appeared to be fingerprints on her hand that would be
      consistent with a hard grip of the hand. There was bruising and
      redness to both legs, her shirt was ripped around the collar. It was
      pulled down and her pant leg, I believe, they were light gray sweat
      pants, shorts, was ripped completely open in the inseam. Aside
      from that, that was pretty much all of the observations aside from
      her emotional state of she was crying, she was shaken, she was
      clearly distraught.

Id. at 46.

      After the Commonwealth rested, the defense called Detective Malinka

Bragg, who interviewed B.T. after the assault, to testify. The testimony was

brief and consisted mostly of: (1) Detective Bragg’s recollection of the

interview; and (2) Detective Bragg’s explanation of the contents of the written

statement she created to memorialize the interview. Id. at 54-57. The defense

then called Jacqueline Martinez, Appellant’s mother. In pertinent part, during

her direct testimony, Martinez testified that on the day in question, she had

received a call from Appellant that he was going to meet with B.T. at his home.

Martinez testified that B.T. had “always been aggressive towards” Appellant,

and with that in mind, she decided to drive to Appellant’s home. Id. at 59.



                                     -4-
J-S48039-19

Martinez testified that when she arrived she saw Appellant bent over and B.T.

standing with a crowbar in her hand. Id. at 59, 72. Martinez testified that

she and B.T. began fighting, but were eventually separated by Appellant.4 Id.

at 60. She then got in her car and left with Appellant. Id. She testified that

during the time she was at Appellant’s home, she never saw Appellant hit B.T.

Id. at 70-71.

      At the conclusion of trial, Appellant was acquitted of aggravated assault,

but was found guilty of simple assault and REAP. On March 23, 2018, the trial

court sentenced Appellant to an aggregate term of 15 to 30 months of

incarceration. Appellant did not file a post-sentence motion. Appellant timely

filed a notice of appeal.5 The trial court ordered Appellant to file a concise

statement of errors complained of on appeal, and counsel for Appellant filed a

statement of intent to file an Anders brief.6 See Pa.R.A.P. 1925(c)(4).




4
 To the contrary, B.T. testified that while Martinez was at the home for a brief
period of time, Martinez remained outside the home and never came inside.
Id. at 38, 42. B.T. testified that Martinez was yelling at B.T. to come outside
“and fight her” and Martinez’s daughters, but B.T. refused, and Martinez
eventually left. Id. at 42.
5
 After filing a notice of appeal, trial counsel was permitted to withdraw and
new counsel, David M. Simon, Esquire, entered his appearance.

6
 In light of counsel’s statement of intent to file an Anders brief, the trial court
opted not to enter any opinion on the merits. Order to Transmit Record,
1/29/2019.

                                       -5-
J-S48039-19

      On appeal, Appellant’s counsel filed both an Anders brief and a petition

to withdraw as counsel. Accordingly, the following principles guide our review

of this matter.

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any additional
      points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions (e.g.,
      directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our own
      review of the appeal to determine if it is wholly frivolous. If the
      appeal is frivolous, we will grant the withdrawal petition and affirm
      the judgment of sentence. However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

      [I]n the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel 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

                                      -6-
J-S48039-19


        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).

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied substantially with the

technical requirements set forth above.7          Therefore, we now have the

responsibility “to conduct a simple review of the record to ascertain if there

appear on its face to be arguably meritorious issues that counsel, intentionally

or not, missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266,

272 (Pa. Super. 2018) (en banc).

        The issues arguably supporting an appeal cited by Appellant’s counsel

challenge the sufficiency and weight of the evidence to sustain Appellant’s

convictions. Anders Brief at 8, 10.        Notably, however, the arguments in

support of these respective claims are essentially identical to one another.

Compare Anders Brief at 8 (“Appellant argues that the evidence failed to

prove that he committed the offense[s], as [B.T.] offered differing versions of

events to [] at trial as compared with her statement to Detective Bragg.”) with

id. at 11 (“Appellant argues that the inconsistencies in [B.T.’s] testimony, as

compared to her earlier statement, render the verdicts contrary to the weight

of the evidence.”). Challenges to the sufficiency and weight of the evidence

are distinct claims.




7
    Appellant has not filed a response to counsel’s petition.

                                        -7-
J-S48039-19


      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
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

             A motion for new trial on the grounds that the verdict is
      contrary to the weight of the evidence, concedes that there is
      sufficient evidence to sustain the verdict. Thus, the trial court is
      under no obligation to view the evidence in the light most
      favorable to the verdict winner. An allegation that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. … [T]he role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000) (citations,

quotation marks, and footnote omitted).         An argument directed to the

credibility of testifying witnesses challenges the weight, not the sufficiency of

the evidence.   Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super.

2013).

      As preliminary matter, we find Appellant’s weight-of-the-evidence claim

waived due to his not having filed a post-sentence motion. See Pa.R.Crim.P.

607(a) (“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

                                      -8-
J-S48039-19

before sentencing; or (3) in a post-sentence motion.”). Our review of the trial

court’s docket and the certified record reveals that Appellant did not make an

oral or written pre-sentence motion or a post-sentence motion challenging the

weight of the evidence.    Consequently, Appellant waived this issue.8      See

Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003)

(providing that a weight of the evidence “claim must be presented to the trial

court while it exercises jurisdiction over a matter since [a]ppellate review of a

weight claim is a review of the exercise of discretion, not of the underlying

question of whether the verdict is against the weight of the evidence”)

(citations and quotation marks omitted).

      We now address Appellant’s sufficiency claim, and do so mindful of the

following.

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. 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. Nevertheless, the


8 Briefly, we note that our case law is clear that the finder of fact is “in the
best position to view the demeanor of the Commonwealth’s witnesses and to
assess each witness’[s] credibility.” Commonwealth v. Olsen, 82 A.3d 1041,
1049 (Pa. Super. 2013) (citation omitted). Thus, it was within the province of
the trial court, as fact-finder, to believe B.T.’s testimony that Appellant
assaulted B.T., disbelieve evidence presented by the defense, and resolve any
inconsistent testimony presented in the Commonwealth’s favor.               See
Commonwealth v. Miller, 172 A.3d 632, 642 (Pa. Super. 2017) (“Resolving
contradictory testimony and questions of credibility are matters for the finder
of fact.”).



                                      -9-
J-S48039-19


      Commonwealth need not establish guilt to a mathematical
      certainty. Any doubt about the defendant’s guilt is to be resolved
      by the fact finder unless the evidence is so weak and inconclusive
      that, as a matter of law, no probability of fact can be drawn from
      the combined circumstances.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013) (internal

citations and quotations omitted).

      As set forth supra, the crux of Appellant’s argument, that B.T. provided

conflicting testimony, is a challenge to the weight, not the sufficiency of the

evidence.   Regardless, even if Appellant properly presented a sufficiency

claim, we find the Commonwealth met its burden of proving each and every

element of the crimes for which Appellant was convicted.

      “Pursuant to 18 Pa.C.S.[] § 2701, ‘[a] person is guilty of [simple]

assault if he: (1) attempts to cause or intentionally, knowingly, or recklessly

causes bodily injury to another.’ 18 Pa.C.S.[] § 2301 defines ‘bodily injury’ as

‘[i]mpairment of physical condition or substantial pain.’” Commonwealth v.

Klein, 795 A.2d 424, 428 (Pa. Super. 2002). A person commits 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. § 2705.

      In this case, at trial, B.T. testified that, while trying to collect her

belongings from the home she shared with Appellant, Appellant attacked her

and became physically violent towards her. Specifically, B.T. testified that

Appellant punched her in the face, hit her numerous times, dragged her across

the floor, “beating [her] up from the front room all the way to the hallway[,]”



                                     - 10 -
J-S48039-19

until she became unconscious. N.T., 10/27/2017, at 14.       The assault ended

with Appellant throwing B.T. down the stairs of the home. Id. at 15. B.T.

testified that on the day of the assault, she was on crutches and had 40 staples

in her hip, as a result of surgery she had recently undergone for injuries she

sustained in a car accident. Id. at 12, 14.

      Based upon the foregoing, we find Appellant’s conduct clearly

established the elements of the aforementioned statutes.           Here, B.T.’s

testimony that Appellant repeatedly hit and punched B.T. to the point of

unconsciousness, in conjunction with Officer Rycek’s testimony that he

observed scratches, marks, bruising and redness on B.T.’s body when he

arrived to the scene, established that Appellant intentionally and recklessly

caused serious bodily injury to B.T. Id. at 14-15, 46.

      Moreover, Appellant engaged in conduct that placed B.T. in danger of

death or serious bodily injury when he “threw” B.T., who was recovering from

hip surgery and walking only with the assistance of crutches, down the stairs

of his home. See Commonwealth v. Rahman, 75 A.3d 497, 502-503 (Pa.

Super. 2013) (finding the evidence sufficient to sustain Rahman’s REAP

conviction where Rahman “thr[ew] punches at [a police officer] on a stairwell

on a crowded balcony next to a glass divide;” although the officer did not

actually fall down the stairs, the evidence was sufficient to place the officer

“in danger of death or serious bodily injury” because [Rahman’s] actions




                                     - 11 -
J-S48039-19

“easily could have caused [the officer] to lose his footing and fall down the

stairs”). Thus, Appellant’s sufficiency claim fails.9

      In light of the foregoing, we agree with counsel that claims challenging

the sufficiency and weight of the evidence to sustain Appellant’s convictions

are frivolous. Moreover, we have conducted “a simple review of the record”

and have found no “arguably meritorious issues that counsel, intentionally or

not, missed or misstated.” Dempster, 187 A.3d at 272.            Accordingly, we

affirm the judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




9
 Lastly, to the extent Appellant is arguing that the evidence was insufficient
because at the time of the altercation he was acting in self-defense, we are
mindful that

      [w]here an accused raises the defense of self-defense under
      Section 505 of the Pennsylvania Crimes Code, the burden is on
      the Commonwealth to prove beyond a reasonable doubt that the
      defendant’s act was not justifiable self-defense. The
      Commonwealth sustains this burden if it establishes at least one
      of the following: 1) the accused did not reasonably believe that he
      was in danger of death or serious bodily injury; or 2) the accused
      provoked or continued the use of force; or 3) the accused had a
      duty to retreat and the retreat was possible with complete safety.
      It remains the province of the [fact-finder] to determine whether
      the accused’s belief was reasonable, whether he was free of
      provocation, and whether he had no duty to retreat.

Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa. Super. 2005)
(citations and quotation marks omitted).            Here, the Commonwealth
sufficiently disproved any theory of self-defense by establishing that Appellant
was the aggressor who attacked B.T. and that at the time of the assault, B.T.
was on crutches and recovering from surgery. In light of the case law cited
supra, it was within the province of the trial court, as fact-finder, to reject the
defense’s theory of self-defense, in favor of the Commonwealth’s evidence.

                                      - 12 -
J-S48039-19

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 10/16/19




                          - 13 -
