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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
TRACY A. BRITTINGHAM,                      :          No. 2963 EDA 2014
                                           :
                           Appellant       :


             Appeal from the Judgment of Sentence, June 12, 2014,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0010691-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JANUARY 13, 2016

        Tracy A. Brittingham appeals from the June 12, 2014 judgment of

sentence following his conviction of aggravated assault, simple assault, and

possession of an          instrument of crime.1     The   trial   court appointed

Gary S. Server, Esq., as appellant’s counsel for both the trial and his appeal.

Attorney Server has filed a petition to withdraw, alleging that the appeal is

frivolous, accompanied by an Anders brief.2            We will grant counsel’s

withdrawal petition and affirm the judgment of sentence.

        The trial court provided the following relevant facts:




1
    18 Pa.C.S.A. §§ 2702(a), 2701(a), and 907(a), respectively.
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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          1.    Testimony of Police Officer Jason Tomon

                On July 3, 2013, Philadelphia Police Officer
          Jason Tomon was on routine patrol in the area of
          2300 West Indiana Avenue in Philadelphia when he
          observed a large group of people gathered at a
          corner. Officer Tomon observed Defendant strike
          William Wise on the top of the head and on his hands
          with a two-by-four piece of wood. At the time he
          was struck in the head and hands, Wise was kneeling
          on the ground and putting his hands up to block the
          strikes by Defendant.      Officer Tomon observed
          Defendant strike Wise at least two or three times in
          the area of Wise’s head and his hands.
          Officer Tomon never observed Wise strike, hit, or
          attempt to hit Defendant, and also did not observe
          any    weapons    or   objects    in  Wise’s   hand.
          Officer Tomon was unaware of how the incident
          started.

                Defendant stopped hitting Wise only when he
          observed Officer Tomon arrive in his police car. In
          response to observing Officer Tomon, Defendant
          threw down the two-by-four piece of wood and
          started to walk away.         Officer Tomon stopped
          Defendant and arrested him. Officer Tomon did not
          observe any cuts or bruises on Defendant.
          According to Officer Tomon, “He was fine.” During
          his arrest, Defendant told Officer Tomon that Wise
          was following him. Officer Tomon does not recall
          Defendant telling him that he called the police or
          that Wise attacked him.             To the contrary,
          Officer Tomon recalled that it was a “sight job,” i.e.,
          Officer Tomon stopped at the scene because of what
          he observed rather than going to the scene in
          response to a call to police dispatch.

                After arresting Defendant, Officer Tomon went
          to Wise who, at the time, could only tell
          Officer Tomon his name. Officer Tomon observed
          scrapes on Wise’s hand and cuts on his hand and
          face. Officer Tomon recovered the two-by-four piece
          of wood, which was broken into two pieces.



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            ....

            3.     Testimony by Defendant

                  Defendant testified that he was at 22nd and
            Cambria Streets when Wise started to follow him and
            said something about Defendant disrespecting his
            mother or brother. Defendant believed Wise was on
            PCP or angel dust. Defendant did not recognize Wise
            as someone he knew. Wise continued to follow
            Defendant, so Defendant called the police.        In
            response to Defendant calling the police, Wise went
            over to Defendant and struck him with a two-by-four
            piece of wood, which knocked Defendant’s cell phone
            out of his hand.      Defendant then grabbed the
            two-by-four piece of wood and started to wrestle on
            the ground with Wise. At this point, both Wise and
            Defendant are holding the piece of wood. At some
            point, Defendant was able to gain control of the
            piece of wood. After gaining control of the piece of
            wood, Defendant struck Wise’s hands with the piece
            of wood in order to stop Wise from grabbing onto his
            clothes. Defendant testified that, prior to striking
            Wise with the piece of Wood, he did not believe he
            could retreat with complete safety from Wise. He
            further testified that he struck Wise in order to
            prevent Wise from continuing his attack.

                   After Officer Tomon arrived, Defendant told the
            officer that Wise had been following him for two
            blocks and attacked him. Defendant also told the
            officer that he had called the police and that he
            wanted to press charges against Wise. Defendant
            was not bleeding but testified that he had a bruise
            on his shoulder.

Trial court opinion, 2/4/15 at 1-3.3




3
  Wise was the victim of an unrelated homicide prior to trial on July 14,
2013. The Commonwealth and Attorney Server stipulated to the admission
of his death certificate. (Notes of testimony, 4/11/14 at 24.)


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        Appellant was convicted of aggravated assault, simple assault, and

possession of an instrument of crime following a non-jury trial on April 11,

2014.      The trial court sentenced appellant on June 12, 2014, to an

aggregate term of 39-120 months’ imprisonment.               On June 19, 2014,

appellant filed a post-sentence motion which was denied by the trial court on

October 10, 2014. Appellant filed a notice of appeal on October 20, 2014,

and the trial court ordered appellant to file a concise statement of errors

complained        of   on    appeal   on    October   21,   2014,   pursuant   to

Pa.R.A.P. 1925(b).          Appellant complied with the trial court’s order on

October 24, 2014.             The trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

        Appellant raised the following issues on appeal:

             I.        WHETHER THE ADJUDICATION OF GUILT IS
                       AGAINST THE WEIGHT OF THE EVIDENCE AND
                       SHOCKING TO ONE’S SENSE OF JUSTICE
                       WHERE THE ARRESTING OFFICER DID NOT
                       SEE HOW THE INCIDENT STARTED, WHERE
                       THE    ARRESTING   OFFICER     TESTIFIED
                       INCONSISTENTLY   AND   UNCONVINCINGLY,
                       WHERE    THE   APPELLANT    IMMEDIATELY
                       EXPLAINED THAT THE VICTIM HAD BEEN
                       FOLLOWING HIM, WHERE THE APPELLANT
                       TESTIFIED CONVINCINGLY THAT HE WAS
                       DEFENDING HIMSELF AND WHERE THERE WAS
                       EVIDENCE    THAT   THE    VICTIM    WAS
                       BELLIGERENT, AGGRESSIVE, COMBATIVE AND
                       OBVIOUSLY UNDER THE INFLUENCE OF A
                       CONTROLLED SUBSTANCE[?]

             II.       WHETHER THE APPELLANT’S CONVICTIONS
                       ARE BASED UPON INSUFFICIENT EVIDENCE
                       BECAUSE THE CIRCUMSTANTIAL INFERENCE


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                  DRAWN FROM THE EVIDENCE THAT THE
                  APPELLANT WAS THE AGGRESSOR AND WAS
                  ASSAULTIVE    IS   AN     UNREASONABLE
                  INFERENCE AND NOT CONSISTENT WITH THE
                  EVIDENCE PRESENTED AT TRIAL[?]

           III.   WHETHER THE APPELLANT WAS PROVIDED
                  WITH INEFFECTIVE ASSISTANCE OF COUNSEL
                  WHERE COUNSEL FAILED TO IMPEACH A
                  COMMONWEALTH WITNESS WITH ALLEGED
                  INCONSISTENT     TESTIMONY   AT    THE
                  PRELIMINARY HEARING[?]

Anders brief at 6.

     On May 22, 2015, Attorney Server filed in this court a motion to

withdraw as counsel and an Anders brief, wherein Attorney Server states

there are no non-frivolous issues preserved for our review.

           A request by appointed counsel to withdraw pursuant
           to Anders and Santiago gives rise to certain
           requirements and obligations, for both appointed
           counsel and this Court.        Commonwealth v.
           Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
           2015).

                  These requirements and the significant
                  protection they provide to an Anders
                  appellant arise because a criminal
                  defendant has a constitutional right to a
                  direct appeal and to counsel on that
                  appeal.   Commonwealth v. Woods,
                  939 A.2d 896, 898 (Pa.Super. 2007).
                  This Court has summarized these
                  requirements as follows:

                       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


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                    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 additional
                    points worthy of the Court’s
                    attention.

               Woods, 939      A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise content of an Anders brief:

                    The    Anders      brief     that
                    accompanies court-appointed
                    counsel’s       petition       to
                    withdraw     .   .     .   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


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                       point that have led to the
                       conclusion that the appeal is
                       frivolous.

                 Santiago, 978 A.2d at 361.

           Id. at 1248. If this Court determines that appointed
           counsel has met these obligations, it is then our
           responsibility “to make a full examination of the
           proceedings and make an independent judgment to
           decide whether the appeal is in fact wholly frivolous.”
           Id. at 1248. In so doing, we review not only the
           issues identified by appointed counsel in the Anders
           brief, but examine all of the proceedings to “make
           certain that appointed counsel has not overlooked
           the existence of potentially non-frivolous issues.”
           Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Server’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

court’s attention, and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005).    See Commonwealth v. Daniels, 999 A.2d

590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set forth

the new requirements for an Anders brief, which are quoted above, the

holding did not abrogate the notice requirements set forth in Millisock that

remain binding legal precedent.”). As Attorney Server has complied with all



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of the requirements set forth above, we conclude that counsel has satisfied

the procedural requirements of Anders.4

      Once    counsel   has   met   his   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. Thus,

we now turn to the merits of appellant’s appeal.

      In his first issue on appeal, appellant avers that the trial court’s verdict

was contrary to the weight of the evidence.         Our standard of review for

determining whether a verdict is compatible with the weight of the evidence

is well settled:

                    An appellate court’s standard of review when
             presented with a weight of the evidence claim is
             distinct from the standard of review applied by the
             trial court:

                          Appellate 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. Because the trial judge has
                   had the opportunity to hear and see the
                   evidence presented, an appellate court
                   will give the gravest consideration to the
                   findings and reasons advanced by the
                   trial judge when reviewing the trial

4
  We note that Attorney Server’s May 22, 2015 letter to appellant incorrectly
stated that appellant’s rights to respond to Attorney Server’s Anders brief
were contingent upon this court’s acceptance of the brief and allowing
Attorney Server to withdraw. In response to a per curiam order of this
court, Attorney Server notified appellant of his rights in a letter dated
June 5, 2015.


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                   court’s determination that the verdict is
                   against the weight of the evidence. One
                   of the least assailable reasons for
                   granting or denying a new trial is the
                   lower court’s conviction that the verdict
                   was or was not against the weight of the
                   evidence and that a new trial should be
                   granted in the interest of justice.

                   This does not mean that the exercise of
             discretion by the trial court in granting or denying a
             motion for a new trial based on a challenge to the
             weight of the evidence is unfettered. In describing
             the limits of a trial court’s decision, we have
             explained:

                   The term “discretion” imports the
                   exercise of judgment, wisdom and skill
                   so as to reach a dispassionate conclusion
                   not exercised for the purpose of giving
                   effect to the will of the judge. Discretion
                   must be exercised on the foundation of
                   reason, as opposed to prejudice,
                   personal motivations, caprice or arbitrary
                   actions. Discretion is abused where the
                   course pursued represents not merely an
                   error in judgment, but where the
                   judgment is manifestly unreasonable or
                   where the law is not applied or where the
                   record shows that the action is a result of
                   partiality, prejudice, bias, or ill will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted) (emphasis deleted).

      A fact-finder is free to believe all, part, or none of the evidence

presented.   Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.

2015) (citations omitted). This court cannot assume the task of assessing

the credibility of the witnesses or evidence presented at trial, as that task is



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within the exclusive purview of the fact-finder.      Hankerson, 118 A.3d at

420 (citations omitted).

      Appellant specifically avers that Officer Tomon’s testimony during trial

was inconsistent with his testimony during the preliminary hearing.

(Anders brief at 15.) Appellant also avers that “it is shocking to one’s sense

of justice that [the trial judge] believed Officer Tomon and not the

appellant.”    (Id. at 16.)     The trial court made the following credibility

determination:

              In making its credibility determination, the trial court
              considered the evidence presented by the Defendant,
              including that Wise was the first aggressor and that
              Defendant acted in self-defense. The trial court also
              observed Defendant’s demeanor and manner of
              testifying at trial and considered that Defendant has
              two crimen falsi convictions. Last, the trial court
              considered the extent to which the testimony of
              Officer Tomon and Defendant were corroborated by
              other evidence, such as the medical records.
              Weighing all of these facts and evidence, the trial
              court chose to discredit Defendant’s testimony in its
              entirety and to credit Officer Tomon’s testimony.

Trial court opinion, 2/4/15 at 3-4.

      Appellant waived his right to a jury trial; therefore, the trial court

functioned as the fact-finder for his trial. Pursuant to this court’s decision in

Mosley, the trial court was free to believe all of Officer Tomon’s testimony

and none of appellant’s testimony, as it did in the instant case.            We

therefore find the trial court did not abuse its discretion by denying

appellant’s weight of the evidence challenge.



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      Appellant next raises whether the evidence was sufficient to warrant

his convictions. We are subjected to the following standard of review:

                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact-finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to a
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, the Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).

                  Moreover, when applying the above test, the
            entire record must be evaluated and all evidence
            actually received must be considered. Finally, the
            finder of fact, while passing upon the credibility of
            the witnesses and the weight of the evidence
            produced, is free to believe all, part, or none of the
            evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted).

      We first review appellant’s aggravated assault conviction. Aggravated

assault is defined as when a person “attempts to cause or intentionally or



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knowingly     causes    bodily   injury   to    another   with    a   deadly    weapon.”

18 Pa.C.S.A. § 2702(a)(4). A deadly weapon is defined as “any . . . device

or instrumentality which, in the manner which it is used . . . is calculated or

likely to produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301. See

also Commonwealth v. McCullum, 602 A.2d 313, 323 (Pa. 1992) (“A

deadly weapon need not be, of course, an inherently lethal instrument or

device”).

      Here, the Commonwealth produced sufficient evidence to convict

appellant of aggravated assault. When viewed in the light most favorable to

the Commonwealth, as verdict winner, Officer Tomon’s testimony satisfies

the required elements to obtain a conviction of aggravated assault.

      First, Officer Tomon testified that he observed appellant strike Wise

several times in the head and hands with a two-by-four piece of wood,

causing     bodily   injury.     (Notes    of      testimony,    4/11/14   at    9,    11.)

Officer Tomon testified further that Wise had his hands up, trying to avoid

being struck by the two-by-four. (Id. at 10.) Upon Officer Tomon’s arrival

to the scene, Wise had multiple visible injuries, including scrapes on the

palms of his hands and cuts on his head and face.                 (Id. at 14.)        Wise’s

injuries required that he be transported by ambulance to the Temple

University Medical Center. (Id.) The two-by-four piece of wood, when used

to strike a person in the head and hands, is a deadly weapon pursuant to

our supreme court’s decision in McCullum.



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     The trial court also noted that appellant raised a valid self-defense

argument. (See trial court opinion, 2/4/15 at 6.) In order for a defendant

to successfully claim self-defense, he or she must meet the following three

elements: (1) the defendant reasonably believed that he was in imminent

danger of death or serious bodily injury and that the use of deadly force was

necessary to prevent such harm; (2) the defendant did not provoke the

incident which resulted in the use of force; and (3) the defendant did not

violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740

(Pa. 2012) (citations omitted).     The Commonwealth has the burden of

disproving self-defense beyond a reasonable doubt, and may do so by

disproving any one of the three self-defense elements the defendant must

meet. Mouzon, 53 A.3d at 740-741.

     Here, we only need to address the first factor discussed in Mouzon:

whether appellant reasonably believed that he was in imminent danger of

death or serious bodily injury and that the use of deadly force was necessary

to prevent such harm.        The fact-finder has the sole purview over

determining whether a defendant’s belief of imminent danger is reasonable.

Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa.Super. 2005).

     Appellant claimed that Wise was following him and had attacked him

first with the two-by-four piece of wood.    (Notes of testimony, 4/11/14 at

32-33.)   Appellant further testified that, after appellant had control of the

two-by-four, Wise was attempting to grab hold of appellant.      (Id. at 34.)



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Based on both appellant’s testimony, and Officer Tomon’s testimony that

appellant struck Wise on his head and hands while Wise had his hands raised

to prevent being struck, we find that the Commonwealth has proven beyond

a reasonable doubt that appellant was never reasonably in any imminent

danger of death or serious bodily harm, and therefore his self-defense claim

must fail.

      For these reasons, we find that the Commonwealth has met its burden

of disproving appellant’s self-defense claim beyond a reasonable doubt, and

that the evidence fully supports the trial court’s guilty verdict on the

aggravated assault charge.5

      We now turn to the sufficiency of the evidence for appellant’s

conviction of possession of an instrument of crime. An individual is guilty of

possession of an instrument of crime “if he possesses any instrument of

crime with intent to employ it criminally.”    18 Pa.C.S.A. § 907(a).     The

statute defines instrument of crime as “anything used for criminal purposes

and possessed by the actor under circumstances not manifestly appropriate

for lawful uses it may have.” 18 Pa.C.S.A. § 907(d)(2).

      In the instant case, as noted above, Officer Tomon testified that he

personally observed appellant striking Wise with the two-by-four piece of


5
  Attorney Server did not include an analysis of the sufficiency of the
evidence of the simple assault charge in his Anders brief. Such analysis is
unnecessary, as all the elements of simple assault are met by appellant’s
aggravated assault conviction. See Commonwealth v. Brown, 605 A.2d
429, 432 (Pa.Super. 1992).


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wood.    Based on Officer Tomon’s testimony, when taken in the light most

favorable to the Commonwealth, we find that the Commonwealth has

produced evidence sufficient to warrant a conviction for possession of an

instrument of crime, and therefore, appellant’s sufficiency of the evidence

claim is without merit.

        Finally, appellant’s third issue raised for our review is whether

appellant’s counsel at trial provided ineffective assistance.6 It is a general

rule that claims of ineffective assistance of counsel are inappropriate for

direct appeal, and should be brought on collateral review pursuant to the

Post Conviction Relief Act.7 Commonwealth v. Grant, 813 A.2d 726, 738

(Pa. 2002).     Therefore, we will not review the merits of appellant’s

ineffective assistance of counsel claims, as this is not the appropriate forum

to do so.

        In sum, we find this appeal to be wholly frivolous, and our

independent review of the entire record has not disclosed any other

potentially non-frivolous issues.   Consequently, we grant counsel’s petition

to withdraw, and we affirm the judgment of sentence.

        Judgment of sentence affirmed.        Petition to withdraw granted.

Commonwealth’s motion for acceptance of brief as timely filed granted.


6
  Appellant responded to Attorney Server’s Anders brief by raising an
additional 14 issues, all of which related to allegations of Attorney Server
providing ineffective assistance at trial.
7
    42 Pa.C.S.A. §§ 9541-9546.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2016




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