J-S05044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARK CHRISTIAN HARSH,

                            Appellant                No. 1369 MDA 2016


              Appeal from the Judgment of Sentence April 6, 2016
                in the Court of Common Pleas of Franklin County
               Criminal Division at No.: CP-28-CR-0001080-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 30, 2017

        Appellant, Mark Christian Harsh, appeals from the judgment of

sentence imposed following his jury conviction of aggravated assault 1 and

simple assault.2 Court-appointed counsel for Appellant has filed a petition to

withdraw from representation on the basis of frivolity, and a supporting brief

pursuant to Anders v. California3 and Commonwealth v. Santiago.4 For



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a)(4).
2
    18 Pa.C.S.A. § 2701(a)(2).
3
    386 U.S. 738 (1967).
4
    978 A.2d 349 (Pa. 2009).
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the reasons set forth below, we grant counsel’s petition to withdraw and

affirm Appellant’s judgment of sentence.

     We derive the following recitation of facts from the trial court’s July 26,

2016 opinion and our independent review of the certified record.        Shortly

after 9:00 p.m. on May 11, 2015, Appellant was playing music at such a

volume that it reverberated in the victim’s upstairs apartment and knocked

candles off the windowsill; it could be heard outside of the building. (See

N.T. Trial, 2/29/16, at 37-38, 96).     The victim, Dustin Jackson, having

unsuccessfully attempted to put his son to sleep, went downstairs to ask

Appellant to lower the volume. (See id.). Because of prior encounters with

Appellant, the victim took his cell phone with him to record the interaction.

(See id. at 38).    There was no answer to initial knocks, but Appellant

answered the victim’s subsequent, louder knocks.       (See id.)    During the

ensuing exchange, Appellant told the victim “fuck you nigger,” spit in the

victim’s face, and “slammed the door shut.” (Id. at 39). The victim became

angry and kicked the door two or three times, but not with such force as to

break or damage it. (See id. at 40, 84-85).

     As the victim turned around to leave, he saw Appellant reappear at the

door with a hammer in his hand.       (See id. at 42).    Appellant exited his

apartment, approached the victim, took the cell phone out of the victim’s

hand, and smashed it with his hammer. (See id. at 42, 50). As the victim

continued to back away, Appellant struck him with the hammer. (See id. at


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42, 98). The victim raised his arm to protect his face, sustaining an injury

to his forearm. (See id. 42, 98-99). As a result, the victim fell backwards

and hit his head. (See id. at 44-45). While the victim was on the ground,

Appellant stood over him saying, “I’m going to kill you.” (Id. at 45; see id.

at 46).

        Appellant’s wife yelled at him to stop, and he returned to his

apartment. (See id. at 45-46). The victim went to the hospital. (See id.

at 47). He sustained swelling and scraping to his left arm, causing a dent

and continual shooting pain through his wrist, which has persisted. (See id.

at 47-48, 83).

        The Commonwealth charged Appellant with aggravated assault, simple

assault, and harassment.5 A jury convicted him of aggravated assault and

simple assault.     On April 6, 2016, the trial court sentenced Appellant to a

term of not less than thirty-three nor more than one hundred and twenty

months of incarceration in a state correctional institution for the aggravated

assault conviction.6      Appellant filed post-sentence motions for a new trial

challenging the weight and sufficiency of the evidence and raising a Fifth




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5
  18 Pa.C.S.A. § 2709(a)(1); the disposition of the harassment charge is not
a subject of the instant appeal.
6
    The conviction of simple assault merged for sentencing purposes.




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Amendment claim, which the trial court denied on July 26, 2016. (See Trial

Court Opinion, at 14). Appellant timely appealed.7

       On November 15, 2016, counsel for Appellant filed a motion to

withdraw as counsel and an Anders brief. Counsel raises three issues for

our review:

                1. Whether the Commonwealth presented sufficient
          evidence for the jury to find [Appellant] guilty of both
          aggravated assault and simple assault, beyond a
          reasonable doubt?

                2. Whether the verdict of guilty of aggravated
          assault and simple assault was against the weight of the
          evidence presented at trial?

                 3. Whether [Appellant] was denied a fair trial when
          his right to remain silent was violated when he was being
          questioned by the Commonwealth’s attorney?

(Anders Brief, at 7).

       Before addressing the merits of Appellant’s claims, we must first

review counsel’s petition to withdraw. See Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa. Super. 2007). If counsel seeks to withdraw under

Anders, he 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
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7
  On September 12, 2016, Appellant filed a timely statement of errors
complained of on appeal, pursuant to the court’s order. The court filed an
opinion on September 22, 2016. See Pa.R.A.P. 1925.



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         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, supra at 361.

      Counsel must also provide Appellant with a copy of the Anders brief,

together with a letter that advises Appellant of his right to: (1) retain private

counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise

additional arguments that the Appellant deems worthy of the Court’s

attention.   See Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.

Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007) (citation omitted).

      Substantial compliance with these requirements is sufficient.         See

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

“After establishing that the antecedent requirements have been met, this

Court must then make an independent evaluation of the record to determine

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm,

903 A.2d 1244, 1246 (Pa. Super. 2006) (citation omitted).

      Here, court-appointed counsel has complied with the Anders and

Santiago requirements.      Counsel submitted a brief which summarizes the

facts and procedural history of the case, refers to evidence of record that

might arguably support the appeal, provides citations and relevant case law,

and sets forth his reasoning and conclusion that the appeal is wholly

frivolous.   (See Anders Brief, at 8-15).      Counsel has filed a petition to

withdraw from further representation, notified Appellant of the withdrawal


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request, and sent him a letter explaining his right to proceed pro se or with

new, privately-retained counsel to raise any additional points or arguments

that Appellant believes to be meritorious.    (See Letter from Jonathan C.

Faust, Esq. to Appellant, 11/04/16).     A review of the record reveals no

response from Appellant.    Because counsel’s petition and brief satisfy the

requirements of Anders and Santiago, we will undertake our own review of

the appeal to determine if it is wholly frivolous. See Palm, supra at 1246.

      The Anders brief first challenges the sufficiency of the evidence for

Appellant’s conviction of aggravated assault and simple assault.        (See

Anders Brief, at 7). Specifically, the brief asserts that the Commonwealth

failed to establish that Appellant acted with the requisite intent to cause

bodily injury with a deadly weapon, or to disprove his self-defense claim.

(See id. at 11-12). We disagree.

      Our standard of review for a challenge to the sufficiency of the

evidence is well-settled.

                  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
         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

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         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.

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation

omitted).

      A person commits the offense of aggravated assault if he “attempts to

cause or intentionally or knowingly causes bodily injury to another with a

deadly weapon[.]” 18 Pa.C.S.A. § 2702(a)(4). A person acts “intentionally”

when “it is his conscious object to engage in conduct of that nature or to

cause such a result[.]”      18 Pa.C.S.A. § 302(b)(1)(i).      A person acts

“knowingly” when “he is aware that it is practically certain that his conduct

will cause such a result.”   18 Pa.C.S.A. § 302(b)(2)(ii).     “Intent can be

proven by direct or circumstantial evidence; it may be inferred from acts or

conduct or from the attendant circumstances.” Commonwealth v. Gruff,

822 A.2d 773, 776 (Pa. Super. 2003), appeal denied, 863 A.2d 1143 (Pa.

2004) (citation omitted).

      Appellant also claims self-defense.   (See Anders Brief, at 12).    The

Pennsylvania Crimes Code specifies when it is justifiable to use force against

another person in the interest of self-protection. See 18 Pa.C.S.A. § 505. A

defendant has no burden to prove he acted in self-defense.        See Smith,

supra at 787.      However, “[b]efore the issue of self-defense may be


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submitted to a jury for consideration, a valid claim of self-defense must be

made out as a matter of law, and this determination must be made by the

trial judge.”     Commonwealth v. Mayfield, 585 A.2d 1069, 1070 (Pa.

Super. 1991).

        The Commonwealth has the burden to prove beyond a reasonable

doubt     that   the   defendant   was    not   acting   in    self-defense.   See

Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011), cert. denied,

565 U.S. 1247 (2012). The Commonwealth meets its burden by establishing

either that: “(1) the [defendant] did not reasonably believe that he was in

danger of death or serious bodily injury; or (2) the [defendant] provoked or

continued the use of force; or (3) the [defendant] had a duty to retreat and

the retreat was possible with complete safety.”               Smith, supra at 787

(citation omitted).

        A defendant claiming self-defense must have both a subjective belief

that he was in imminent danger, and an objectively reasonable belief that

the use of force was necessary to protect against death or serious bodily

injury.    See id.      The reasonableness of a defendant’s belief can be

determined by considering such factors as “whether complainant was armed,

any actual physical contact, size and strength disparities between the

parties, prior dealings between the parties, threatening or menacing actions

on the part of the complainant, and general circumstances surrounding the

incident[.]”     Id. at 788 (citation omitted).   The defendant must not have


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“used more force than reasonably necessary to protect against death or

serious bodily injury.” Id. (citation omitted). Finally, the defendant “must

be free from fault in provoking or escalating the altercation that led to the

offense[.]” Id. (citation and emphasis omitted).

       Here,   viewing   the   evidence,   together   with   all   the   reasonable

inferences, in the light most favorable to the Commonwealth as the verdict

winner, we conclude that it was ample to enable the jury to conclude that

Appellant had the requisite intent to commit aggravated assault, and that

the Commonwealth disproved Appellant’s claim of self-defense beyond a

reasonable doubt.

       First, Appellant used provocative language, calling the victim a racial

epithet, spit on his face, and slammed the door shut. After kicking the door

angrily, the victim started to walk away.      Then, Appellant, already safely

inside his own apartment with the door closed, armed himself with a

hammer, re-opened the door, and chased the retreating victim.             Appellant

struck the victim with the hammer. The victim testified that Appellant then

stood over him saying, “I’m going to kill you.” (See N.T. Trial, 2/29/16, at

45).

       Despite Appellant’s claim that he feared for his life and the life of his

wife, the jury, by its verdict, concluded that the Commonwealth presented

sufficient evidence that Appellant intentionally caused bodily injury to the

victim without justification. Appellant plainly chose to leave the safety of his


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own apartment to pursue the retreating victim. Ultimately, the jury as fact-

finder was not required to credit Appellant’s version of events. See Houser,

supra at 1135 (“a jury is not required to believe the testimony of the

defendant who raises the claim [of self-defense.]”) (citation omitted).       We

may not reweigh the evidence and substitute our judgment for that of the

fact-finder. See Smith, supra at 790. Accordingly, we conclude that this

issue is without merit.

       The Anders brief also challenges the sufficiency of the evidence for

simple assault.      (See Anders Brief, at 7).         Simple assault is a lesser-

included offense of aggravated assault.            See Commonwealth v. Novak,

564 A.2d 988, 989 (Pa. Super. 1989).                Because the jury’s aggravated

assault conviction is supported by sufficient evidence, its simple assault

verdict is also supported by sufficient evidence.         For this reason, neither

sufficiency claim merits relief.

       In the second issue, the Anders brief asserts that the guilty verdict for

aggravated and simple assault was contrary to the weight of the evidence. 8

(See Anders Brief, at 7, 12-13).

                When we review a weight-of-the-evidence challenge,
          we do not actually examine the underlying question;
          instead, we examine the trial court’s exercise of discretion
          in resolving the challenge.       This type of review is
          necessitated by the fact that the trial judge heard and saw
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8
  Appellant preserved this claim by raising it with the trial court in a post-
sentence motion. See Pa.R.Crim.P. 607(A)(3).



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          the evidence presented. Simply put, [o]ne 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. A new trial is
          warranted in this context only when the verdict is so
          contrary to the evidence that it shocks one’s sense of
          justice and the award of a new trial is imperative so that
          right may be given another opportunity to prevail.

                Of equal importance is the precept that, [t]he finder
          of fact . . . exclusively weighs the evidence, assesses the
          credibility of witnesses, and may choose to believe all,
          part, or none of the evidence.

Commonwealth v. Konias, 136 A.3d 1014, 1022-23 (Pa. Super. 2016),

appeal denied, 145 A.3d 724 (Pa. 2016) (citations and quotation marks

omitted).

       In the instant case, the verdict confirms that the jury credited the

testimony of the Commonwealth’s witnesses.         See, e.g., Commonwealth

v. Karns, 70 A.3d 881, 884 (Pa. Super. 2013), appeal denied, 84 A.3d 1063

(Pa. 2014) (Where . . . weight of the evidence [is] concerned, it is not the

function of the appellate court to substitute its judgment based on a cold

record for that of the trial court.”) (citation omitted).   Our review of the

record reveals the trial court did not abuse its discretion in denying a new

trial based on the weight of the evidence. See Konias, supra at 1022-23.

Accordingly, Appellant’s weight of the evidence claim lacks merit.9

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9
 As already noted, simple assault is a lesser-included offense of aggravated
assault. See Novak, supra at 989. Because the jury’s verdict of guilty of
(Footnote Continued Next Page)


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      In its final issue, the Anders brief argues that Appellant “was denied a

fair trial when his right to remain silent was violated when he was being

questioned by the Commonwealth’s Attorney[.]” (Anders Brief, at 7; see

id. at 13).    This issue is waived for Appellant’s failure to file a pre-trial

motion seeking to suppress the statement he provided to the police.               See

Commonwealth v. Baumhammers, 960 A.2d 59, 76 (Pa. 2008);

Pa.R.Crim.P. 581. Moreover, it would not merit relief.

      The record reflects that Appellant voluntarily provided an oral

statement to the police, thereby neither remaining silent nor invoking his

rights under the Fifth Amendment.                (See N.T. Trial, 2/29/16, at 159-60).

Because Appellant voluntarily provided his statement to the police, we agree

with counsel that this claim is wholly frivolous.

      Based on the foregoing, the claims raised in the Anders brief lack

merit.     Further, our independent review of the record reveals no non-

frivolous claims that Appellant could have raised.             We agree with counsel

that this appeal is wholly frivolous. Accordingly, we grant counsel’s petition

to withdraw and affirm the judgment of sentence.

      Judgment of sentence affirmed.                Counsel’s petition to withdraw is

granted.


                       _______________________
(Footnote Continued)

aggravated assault is not against the weight of the evidence, its verdict of
guilty of simple assault is also not against the weight of the evidence.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2017




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