J-S60042-16

                               2016 PA Super 231

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   Appellee               :
                                          :
                     v.                   :
                                          :
JAVED TUKHI,                              :
                                          :
                   Appellant              :    No. 3272 EDA 2015

           Appeal from the Judgment of Sentence September 29, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006472-2014

BEFORE:       SHOGAN, OTT, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:        FILED OCTOBER 25, 2016

      Javed Tukhi (Appellant) appeals from the judgment of sentence

imposed following his convictions for aggravated assault, simple assault, and

possession of an instrument of crime. Additionally, Appellant’s counsel has

filed a petition to withdraw and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).     Because we have found a potentially non-frivolous issue upon our

independent review of the record, we deny counsel’s petition to withdraw

and remand for counsel to file either an Anders brief or advocate’s brief on

that issue.

      The trial court summarized the background underlying this matter as

follows.

           Joseph Brandon [(Brandon)] testified that he was at the
      Crown Fried Chicken restaurant at Broad and Susquehanna


*Retired Senior Judge assigned to the Superior Court.
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     Streets [in Philadelphia] on April 23, 2014, at approximately
     2:00 AM, at which time he inquired about employment.
     [Appellant] was an employee behind the counter.

           In response to … Brandon’s plea for work, [Appellant]
     asked him to find him a battery. Brandon left for a while, but
     returned empty handed. When … Brandon asked if there was
     any other work he could do, [Appellant] told him he could sweep
     and mop for $20.

           After ... Brandon completed the work, [Appellant] reneged
     on his agreement to pay and instead offered Brandon a box of
     chicken. [Appellant] then started making racial remarks and
     laughing at Brandon. In response, Brandon up-ended the trash
     can, dumping the dust he had just swept back onto the floor.

           [Appellant] then picked up a 3-4 [foot] iron pipe used for
     pulling down the security gates, jumped over the counter, and
     swung the pipe at Brandon, striking him tw[o] or three times in
     the arm.

           … Brandon backed out of the door, flagged down a police
     car, and requested to be taken to the hospital because of the
     pain in his arm. The officer took Brandon to the hospital. He
     had a broken arm and had a cast placed on his arm. The cast
     was on Brandon’s arm for about two months.

            Brandon    then returned to the Crown Fried Chicken, flagged
     down another      officer and told him what happened. The officer
     went into the     restaurant in an effort to view the video. The
     officer took no   further action.

            … Brandon eventually ended up at Central Detectives, but
     [Appellant] had left the restaurant. The detective told Brandon
     to call if he saw [Appellant] again. A few days later Brandon saw
     [Appellant] and reported his location to the police. Officer
     Joseph Sperry responded, spoke to Brandon and [Appellant] and
     placed [Appellant] under arrest. Brandon was taken back to
     Central Detectives.

          Speen Kahn [(Kahn)] testified as a defense witness that he
     worked with [Appellant] at the Crown Fried Chicken in April of
     2014, and that since leaving that job he has stayed in touch with


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     [Appellant]. ... Kahn testified that ... Brandon entered the
     restaurant on the night in question[] and attempted to sell food
     stamps. Brandon left and returned. According to … Kahn,
     Brandon asked to sweep for food, although he did not hear the
     full conversation between Brandon and [Appellant].          After
     Brandon completed the sweeping he demanded money. Upon
     hearing an argument, ... Kahn walked to the front. According to
     ... Kahn, [Appellant] told Brandon the money was not his to
     give, and opened the front door, telling Brandon to leave, which
     he did. About a half hour later some police officers came to ask
     what had happened.

             ... Kahn denied that there was a metal rod used for the
     security gates. He also testified that he never saw [Appellant]
     hit ... Brandon.

           [Appellant] testified that there was no metal rod used for
     the security gates. He further testified that ... Brandon came
     into the Crown Fried Chicken and attempted to sell food stamps.
     [Appellant] testified that Brandon returned three or four hours
     later and asked to sweep for food. [Appellant] testified that
     after the sweeping, he offered Brandon food, but he demanded
     money. Brandon then started yelling and cursing, and then
     overturned the trash can. [Appellant] testified that he held the
     door for Brandon to leave and said if Brandon did[ not] leave he
     would call the cops. Brandon then left.

Trial Court Opinion (TCO), 1/11/2016, at 2-4 (citations omitted).

     Following a non-jury trial, the trial court convicted Appellant of the

aforementioned crimes. He was sentenced to an aggregate term of nine to

twenty-three months of confinement, to be served on house arrest, followed

by three years of probation. This appeal followed.1



1
  It appears that Appellant was represented at trial and sentencing by
privately-retained counsel. Appellant pro se timely filed a notice of appeal,
along with a request to proceed in forma pauperis and for appointment of
counsel on appeal. Thereafter, new counsel was appointed to represent
Appellant.

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      In this Court, 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


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J-S60042-16


        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.

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

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

technical requirements set forth above.2         Therefore, we now have the

responsibility “‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa. Super.

2015) (quoting Santiago, 978 A.2d at 354 n.5).

        Counsel presents three issues that arguably support this appeal:

        [1.] Was the evidence presented at trial sufficient as a matter of
        law to support the convictions for aggravated assault, simple
        assault, and possessing an instrument of crime?

        [2.] Was the sentence imposed upon [A]ppellant by the lower
        court manifestly excessive?

        [3.] Was [A]ppellant denied effective assistance of counsel due
        to the fact that his privately retained trial counsel: (i) failed to
        present testimony from other potential witnesses; or (ii) failed to
        preserve a claim that the verdict is against the weight of the
        evidence?

Anders Brief at 6 (answers below omitted).




2
    Appellant has not responded to counsel’s petition to withdraw.


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     As Appellant’s first issue challenges the sufficiency of the evidence to

support his convictions, we begin with our well-settled standard of review.

           As a general matter, our 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 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.

           The Commonwealth may sustain its burden by means of
     wholly circumstantial evidence. Accordingly, [t]he fact that the
     evidence establishing a defendant’s participation in a crime is
     circumstantial does not preclude a conviction where the evidence
     coupled with the reasonable inferences drawn therefrom
     overcomes the presumption of innocence. Significantly, we may
     not substitute our judgment for that of the fact finder; thus, so
     long as the evidence adduced, accepted in the light most
     favorable to the Commonwealth, demonstrates the respective
     elements of a defendant’s crimes beyond a reasonable doubt,
     the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(citations and internal quotation marks omitted).

     Pursuant to 18 Pa.C.S. § 2702(a)(4), “[a] person is guilty of

aggravated assault if he[] attempts to cause or intentionally or knowingly

causes bodily injury to another with a deadly weapon.” A person is guilty of

simple assault if he “attempts to cause or intentionally, knowingly or

recklessly causes bodily injury to another.” 18 Pa.C.S. § 2701(a)(1).     The



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Crimes Code defines “bodily injury” as “[i]mpairment of physical condition or

substantial pain,” and a “deadly weapon” as

      [a]ny firearm, whether loaded or unloaded, or any device
      designed as a weapon and capable of producing death or serious
      bodily injury, or any other device or instrumentality which, in the
      manner in which it is used or intended to be used, is calculated
      or likely to produce death or serious bodily injury.[3]

18 Pa.C.S. § 2301. “Although deadly weapons are commonly items which

one would traditionally think of as dangerous (e.g., guns, knives, etc.), there

are instances when items which normally are not considered to be weapons

can take on deadly status.” Commonwealth v. Scullin, 607 A.2d 750, 753

(Pa. Super. 1992) (concluding that “the tire iron used by appellee to strike

the victim became a deadly weapon at the moment appellee threw it in the

direction of the ultimate victim”). “Items not normally considered deadly

weapons can take on such status based upon their use under the

circumstances.” Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa. Super.

2010) (concluding that “an intact glass bottle constituted a deadly weapon”

under the circumstances). See also Commonwealth v. McCullum, 602

A.2d 313, 323 (Pa. 1992) (“A deadly weapon need not be ... an inherently

lethal instrument or device.”); Commonwealth v. Prenni, 55 A.2d 532,

533 (Pa. 1947) (stating “[a]n ax, a baseball bat, an iron bar, a heavy



3
  “Serious bodily injury” is defined 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. § 2301.

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cuspidor, and even a bedroom slipper have been held to constitute deadly

weapons under varying circumstances”).

      Regarding Appellant’s conviction for possessing an instrument of a

crime, we observe that 18 Pa.C.S. § 907(a) provides that “[a] person

commits a misdemeanor of the first degree if he possesses any instrument

of crime with intent to employ it criminally.” The statute defines instrument

of crime, in relevant part, as “[a]nything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for

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

      In addressing the sufficiency issue, counsel points to evidence that

“severely undermin[es] the credibility of … Brandon” and is “favorable … with

respect to the credibility of [Appellant].” Anders Brief at 21-22. However,

as counsel acknowledges, “[t]he [c]ourt found … Brandon credible regarding

the   manner    in   which   he   sustained   his   injury   at   the    hands    of

[Appellant].” TCO, 1/11/2016, at 4.

      To the extent that the credibility determinations made by the trial

court are implicated, we observe that “it is for the fact finder to make

credibility determinations, and the finder of fact may believe all, part, or

none of a witness’s testimony.” Commonwealth v. Jones, 886 A.2d 689,

704 (Pa. Super. 2005).       See also Commonwealth v. Askins, 761 A.2d

601, 603 (Pa. Super. 2000) (“Appellant requests that we reassess the trial

court’s       credibility     determinations.        Pursuant           to       the


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[sufficiency-of-the-evidence] standard, however, we may not disturb the

credibility determinations of the trial court on review.”).         Brandon’s

testimony and the other evidence offered at trial, when viewed in the light

most favorable to the Commonwealth, establishes that Appellant repeatedly

struck Brandon’s arm with an iron pipe used for pulling down security gates

with such force that it caused his arm to break, requiring Brandon to go to

the hospital due to the extreme pain he felt and ultimately wear a cast for

two months.     N.T., 6/9/2015, at 12-16, 21, 34, 38, 45.    This evidence is

sufficient to support Appellant’s convictions.    Thus, we agree with counsel

that Appellant’s sufficiency challenges are frivolous.

      We now turn to Appellant’s challenge to the discretionary aspects of

his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.[] § 9781(b).




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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533

(Pa. Super. 2006)).

      Instantly, Appellant has satisfied the first requirement by timely filing

a   notice   of   appeal.   To   satisfy   the   second   requirement   regarding

preservation, we point out that “[o]bjections to the discretionary aspects of

a sentence are generally waived if they are not raised at the sentencing

hearing or in a motion to modify the sentence imposed.” Griffin, 65 A.3d at

935. Appellant did not raise the issue at his sentencing hearing, nor did he

file a motion to modify the sentence imposed. Therefore, he has waived this

issue for failing to preserve it.   An issue that is waived is frivolous.    See

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008)

(holding that when an issue has been waived, “pursuing th[e] matter on

direct appeal is frivolous”).

      Appellant also claims that his privately-retained trial counsel was

ineffective for failing to present testimony that would have been favorable to

Appellant from other potential witnesses and for failing to preserve a claim

that the verdict was against the weight of the evidence. However, in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.




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2002), that, absent certain circumstances not present here,4 claims of

ineffective assistance of counsel are to be deferred until collateral review

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Holmes, 79 A.3d at 576.       As such, Appellant’s ineffectiveness claims are

frivolous as raised on direct appeal.5

      We     agree   with   counsel   that     the   issues    raised   herein   are

frivolous.   However, our independent review of the record reveals a

potentially non-frivolous issue not raised by counsel: whether Appellant

should be entitled to relief on the basis that he was not advised adequately

of his post-sentence rights following sentencing.             Pennsylvania Rule of

Criminal Procedure 704(C)(3) requires that “the judge … determine on the




4
  See Holmes, 79 A.3d at 563-64 (holding that the trial court may address
claim(s) of ineffectiveness where (1) discrete claim(s) are “apparent from
the record and meritorious to the extent that immediate consideration best
serves the interests of justice,” or (2) the defendant seeks to litigate prolix
claims, there is good cause shown, and review is preceded by the
defendant’s knowing and express waiver of PCRA review).
5
   To the extent Appellant argues the merits of a weight-of-the-evidence
challenge in this appeal, we note that it is waived for failure to raise it before
the trial court. 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 before sentencing; or (3) in a
post-sentence motion.”); Commonwealth v. McCall, 911 A.2d 992, 997
(Pa. Super. 2006). (“The purpose of [Rule 607(A)] is to make it clear that a
challenge to the weight of the evidence must be raised with the trial judge or
it will be waived.”). Thus, this waived issue is also frivolous. Kalichak, 943
A.2d at 291.


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record that the defendant has been advised of” his post-sentence rights.6

Following sentencing, Appellant was advised of his post-sentence rights by

his counsel, whose explanation of those rights was less than clear,

incomplete, and, at times, incorrect. See, e.g., N.T., 9/29/2015, at 13-14

(stating that, inter alia, a request for reconsideration of sentence and a

direct appeal “must” be done with the assistance of counsel and that in the

context of a direct appeal, Appellant “would have to allege some type of an

argument that goes to evidence of ineffectiveness or some kind of error


6
    That rule provides that the defendant should be advised of the following:

        (a) of the right to file a post-sentence motion and to appeal, of
        the time within which the defendant must exercise those rights,
        and of the right to assistance of counsel in the preparation of the
        motion and appeal;

        (b) of the rights,

           (i)   if the defendant is indigent, to proceed in forma
                 pauperis and to proceed with appointed counsel as
                 provided in Rule 122, or,

           (ii) if represented by retained counsel, to proceed with
                retained counsel unless the court has granted leave
                for counsel to withdraw pursuant to Rule 120(B);

        (c) of the time limits within which post-sentence motions must
        be decided;

        (d) that issues raised before or during trial shall be deemed
        preserved for appeal whether or not the defendant elects to file
        a post-sentence motion; and

        (e) of the defendant’s qualified right to bail under Rule 521(B).

Pa.R.Crim.P. 704(C)(3).

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being committed during the course of your trial”).               Our concern in this

regard is compounded by Appellant’s ultimate failure to file post-sentence

motions, particularly in light of the fact that he could have preserved his

discretionary-aspects-of-sentence      and      weight-of-the-evidence       claims    in

post-sentence motions had he filed them.

      By no means is this Court convinced that Appellant is entitled to relief

on the issue we have identified, nor do we venture to state what relief is

due. However, the claim is not so clearly devoid of merit so as to warrant

classifying this appeal as frivolous.      Thus, we deny counsel’s motion for

leave to withdraw and remand the case for counsel to file either (1) an

advocate’s brief on the issue, or (2) an Anders brief, accompanied by a new

petition   to   withdraw,     explaining   why    this   issue    is   frivolous.     The

Commonwealth will have 30 days from the date of the filing of the brief in

order to respond.

      Motion    for   leave    to   withdraw     denied.    Case       remanded     with

instructions. Panel jurisdiction retained.




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J-S60042-16




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/25/2016




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