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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                           :
FRANK D. McGINNIS,                         :        No. 1511 WDA 2013
                                           :
                         Appellant         :


           Appeal from the Judgment of Sentence, April 10, 2013,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0007327-2011


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED MAY 18, 2015

      Frank D. McGinnis appeals from the judgment of sentence of April 10,

2013, following his conviction of aggravated assault.           Appointed counsel,

Christy P. Foreman, Esq., has filed a petition to withdraw and accompanying

Anders1 brief. After careful review, we grant counsel’s withdrawal petition

and affirm the judgment of sentence.

      Appellant was charged with aggravated assault and attempted murder

in   connection   with   the   May   2,   2011   beating   of    his   ex-girlfriend,

Madora Albert (“the victim”). Appellant struck the victim multiple times with

a furnace pipe, breaking her jaw. Following a jury trial held January 14-15,

2013, appellant was found guilty of one count of aggravated assault.


1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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Appellant was found not guilty of criminal attempt -- homicide. On April 10,

2013, appellant was sentenced to 9 to 20 years’ incarceration. Trial counsel

was permitted to withdraw, and present counsel was appointed to represent

appellant on direct appeal.     Post-sentence motions were denied, and this

timely     appeal   followed.    Appellant   has   complied    with    Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed a Rule 1925(a)

opinion.

      Appellant has raised the following issues for this court’s review:

             1.     Whether the evidence presented in this matter
                    was legally insufficient to sustain a conviction
                    of aggravated assault?

             2.     Whether the verdict in this matter was against
                    the weight of the evidence?

             3.     Whether the sentence imposed was excessive?

Appellant’s brief at 7.

      Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)

(en banc) (citation omitted).

             In order for counsel to withdraw from an appeal
             pursuant to Anders, certain requirements must be
             met, and counsel must:




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

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Upon review, we find that Attorney Foreman has complied with all of

the above requirements. In addition, Attorney Foreman served appellant a

copy of the Anders brief, and advised him of his right to proceed pro se or

hire a private attorney to raise any additional points he deemed worthy of

this court’s review. Appellant did file a pro se response to counsel’s petition

to withdraw on February 4, 2015.            The issues raised therein will be

addressed at the end of this memorandum. As we find the requirements of

Anders and Santiago are met, we will proceed to the issues on appeal.

            Our standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to
            the verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.
            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.


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Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      Aggravated assault is defined at 18 Pa.C.S.A. § 2702, which provides

in relevant part:

            (a)     Offense defined.--A person        is   guilty   of
                    aggravated assault if he:

                    (1)   attempts to cause serious bodily
                          injury to another, or causes such
                          injury intentionally, knowingly or
                          recklessly   under    circumstances
                          manifesting extreme indifference to
                          the value of human life;

18 Pa.C.S.A. § 2702(a)(1).        “Serious bodily injury” is defined as “Bodily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.”        18 Pa.C.S.A. § 2301.    Instantly, appellant

was convicted of a single count of aggravated assault as a first-degree

felony under Subsection (a)(1).

      The victim testified that in April 2011, she broke up with appellant but

they still lived together at 1117 Bessica Street in Wilkinsburg.         (Notes of

testimony, 1/14-15/13 at 26-28.) The home was owned by her aunt. (Id.

at 40.) The victim was allowing him to live there until he found a new place.

(Id. at 28.) On May 2, 2011, the victim was sitting on the porch talking on


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the phone with her friend, Trinette Wilson (“Trinette”).               (Id. at 27.)

Appellant came home from work and appeared to be angry. (Id. at 29, 41-

42.) Appellant complained that the victim had not cooked him anything to

eat. (Id. at 29, 42.) Appellant went inside the house, returned to the porch

and stated, “you have been here all day and you ain’t cooked nothing?” (Id.

at 29.) The victim replied that she had not been there all day and continued

talking on the phone. (Id. at 29, 42-43.)

      At that point, appellant picked up a pipe from the end of the porch and

began striking the victim with it.       (Id. at 29.)     The victim testified that

appellant struck her in the head and threatened to kill her:

             He started beating me in my head, constantly talking
             about I will kill you, I’ll kill you, I’ll kill you. The one
             last final blow I fell to the, like to the end of my
             porch. Like my porch has one step before you are
             on the main porch. I fell flat like this with my face
             turned this way.         Even while I was down he
             continued to beat me in my back, I’ll kill you,
             I’m [sic] kill you, I told you that I will kill you. Right
             now I’m like so just out of it. I turned and while I’m
             down I closed my eyes, I’m going to die. He was
             really trying to kill me. I was totally shocked. I
             can’t believe that he would do something like that to
             me.

Id. at 30.

      Eventually, appellant stopped hitting the victim and threw the pipe into

an empty lot next to the house. (Id. at 32.) The victim testified that she

suffered a broken jaw and continues to have problems related to the

incident, including migraine headaches and fibromyalgia.            (Id. at 37-38.)



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The victim testified that she is still taking medication and going to therapy.

(Id. at 37.) She is unable to walk far or hold her grandchildren. (Id.) The

victim described her ongoing chronic injuries as “a nightmare.” (Id. at 38.)

        The victim’s account of the incident was corroborated by Trinette and

her daughter, Nikki Albert (“Nikki”). Trinette testified that she was on the

phone with the victim when she heard appellant come home. (Id. at 56.)

She overheard appellant complain that the victim was home all day and had

not cooked him anything. (Id. at 56-57.) The victim answered that she had

not been home all day, she had just gotten home.         (Id. at 57.)   Trinette

then heard the victim say, “you are going to do what,” and the phone went

dead. (Id.) Trinette testified that the victim did not call her back and she

“got bad vibes,” so she called the victim’s daughter and asked her to check

on the victim. (Id.)

        Nikki testified that she lives only about two blocks from her mother,

the victim. (Id. at 59.) After speaking with Trinette, Nikki proceeded to the

victim’s house where she saw appellant throw something into the grass next

to the house.    (Id. at 60.)   Nikki testified that the victim appeared to be

upset, and was stumbling.       (Id. at 64.)   The victim hid behind Nikki and

stated that appellant had hit her with a pipe. (Id. at 60-61, 64.) Appellant

claimed that the victim had fallen. (Id. at 61, 65.) Nikki called the police.

(Id.)




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      Officer Ronald Waz of the Borough of Wilkinsburg Police testified that

when he arrived on the scene, appellant was intoxicated.            (Id. at 69.)

Appellant claimed that he had accidentally tripped the victim and she had

fallen down the steps and hit her head. (Id.) Officer Waz observed blood

on the porch and front steps.      (Id. at 75.)    After speaking with Nikki,

Officer Mark Wilson recovered a pipe from a grassy area adjacent to the

victim’s residence. (Id. at 77.) Officer Wilson testified that the pipe did not

appear to have been lying there for any length of time. (Id. at 77-78.) The

pipe was described as a heavy copper pipe. (Id. at 71.)

      Michael Lynch, M.D., an emergency physician, testified that he treated

the victim at UPMC Presbyterian on May 2, 2011, the date of the incident.

(Id. at 88.) The victim had significant swelling on the right side of her face

and complained of facial pain.   (Id.)   The victim related that she had lost

consciousness and complained of pain in her neck and back.           (Id.)   The

victim stated that she had been struck with a pipe.         (Id.)    A CT scan

revealed a fracture of the victim’s jaw on the right side.          (Id. at 89.)

Dr. Lynch testified that the victim’s injuries were not consistent with falling

down stairs. (Id. at 91.)

      Clearly, this evidence was sufficient for the jury to find that appellant

intentionally caused the victim serious bodily injury.   Appellant struck the

victim repeatedly with a heavy metal pipe. The victim testified that during

the beating, appellant threatened to kill her. The victim sustained serious



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injuries including a broken jaw.   The victim testified that she continues to

experience pain and physical limitations as a result of the beating.

Appellant’s sufficiency argument is without merit.

      We now turn to appellant’s weight of the evidence claim.2

                  A weight of the evidence claim concedes
                  that the evidence is sufficient to sustain
                  the verdict, but seeks a new trial on the
                  ground that the evidence was so
                  one-sided or so weighted in favor of
                  acquittal that a guilty verdict shocks
                  one’s sense of justice.

            Commonwealth v. Lyons,             Pa.     , 79 A.3d
            1053, 1067 (2013).

                  The     Pennsylvania  Supreme     Court    has
            reiterated the proper standard of review of a weight
            claim as follows:

                  A motion for a new trial based on a claim
                  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. Rather,
                  “the 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.’” It has often been
                  stated that “a new trial should be
                  awarded when the jury’s verdict is so
                  contrary to the evidence as to shock
                  one’s sense of justice and the award of a

2
  This claim was preserved in appellant’s amended post-sentence motion.
(Docket #44.) Pa.R.Crim.P. 607.


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               new trial is imperative so that right may
               be given another opportunity to prevail.”

               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 a
                     trial 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 discretion, we
               have explained:



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                        The term “discretion” imports
                        the exercise of judgment,
                        wisdom and skill so as to
                        reach      a      dispassionate
                        conclusion       within      the
                        framework of the law, and is
                        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 of 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,                Pa.      , 64 A.3d
            1049,  1054-1055        (2013)     (citations   omitted)
            (emphasis in original).

Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014).

     At trial, appellant argued that the victim’s account of the incident was

not credible. Although the victim suffered a fractured jaw, appellant claimed

that if she had been beaten with the heavy copper pipe, she would have

sustained far more serious injuries.     (Notes of testimony, 1/14-15/13 at

114-115.)      Appellant also argued that the medical evidence did not

corroborate the victim’s claims of spinal injuries and concussions.    (Id. at

116-117.)   According to appellant, the victim’s testimony that she was


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savagely beaten was not supported by the physical evidence. (Id. at 117.)

Appellant also pointed out that there was no DNA, blood, or fingerprints

recovered from the pipe. (Id.)

       While appellant chose to downplay the seriousness of the victim’s

injuries, it was not disputed that she suffered a fractured jaw, an injury that

Dr. Lynch characterized as consistent with being struck in the face with a

pipe. (Id. at 91, 97.) Appellant argued to the jury that there was no blood;

however, that was factually incorrect.    (Id. at 116.)   Officer Waz testified

that he observed blood at the scene, on the porch and front steps. (Id. at

75.)   In addition, the victim’s testimony was corroborated by Trinette and

Nikki. Nikki testified that shortly after the incident, the victim appeared to

be upset and had difficulty walking.     (Id. at 64.)   The victim stated that

appellant had hit her with a pipe. (Id. at 60.) As she was approaching the

victim’s residence, Nikki saw appellant toss something into the bushes.

(Id.) The pipe, which the victim identified as the weapon used by appellant,

was recovered by Officer Wilson who testified it did not appear to have been

there very long. (Id. at 38, 77-78.) Regarding the lack of forensic evidence

such as fingerprints, it was explained that a lack of latent fingerprints does

not mean that the object was not touched. (Id. at 104-105.)

       Any minor inconsistences or discrepancies in the evidence were for the

jury to resolve. The jury is free to believe all, part, or none of the evidence.

Obviously, the jury found the victim’s testimony to be credible.       The jury



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was free to reject appellant’s argument that the victim would necessarily

have sustained far more serious and obvious injuries from being beaten with

a heavy metal pipe.    The victim testified that she continues to experience

chronic pain and physical limitations as a result of the attack. Certainly the

jury’s verdict does not shock the judicial conscience. The trial court did not

abuse its discretion in denying appellant’s weight of the evidence claim.

      Next, appellant challenges the discretionary aspects of his sentence.

An appellant’s right to challenge the discretionary aspects of his sentence is

not absolute.   Commonwealth v. Barzyk, 692 A.2d 211, 216 (Pa.Super.

1997). Rather, a party who desires to raise such matters must petition this

court for permission to appeal and demonstrate that there is a substantial

question that the sentence is inappropriate.        42 Pa.C.S.A. § 9781(b);

Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987).                    The

determination of whether a particular issue constitutes a substantial

question as to the appropriateness of sentence must be evaluated on a

case-by-case basis. Barzyk, 692 A.2d at 216. In fulfilling this requirement,

the party seeking to appeal must include in his or her brief a concise

statement of reasons relied upon in support of allowance of appeal.




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Pa.R.A.P. 2119(f),3 Commonwealth v. Saranchak, 675 A.2d 268, 277 (Pa.

1996), cert. denied, 519 U.S. 1061 (1997).

        Instantly, appellant has failed to set forth in his brief a concise

statement     of    reasons    relied   upon    for   allowance   of   appeal.   The

Commonwealth has specifically objected to this omission. (Commonwealth’s

brief at 17-18).     Therefore, the defect is fatal and this court is precluded

from addressing the merits of appellant’s challenge.              Commonwealth v.

Davis, 734 A.2d 879, 882 n.4 (Pa.Super. 1999).4

        Finally, we turn to appellant’s issues raised in his pro se response to

Attorney     Foreman’s        withdrawal     petition.     Appellant    argues   that

Attorney Foreman was ineffective for filing a petition to withdraw and

Anders brief.       Appellant claims that by doing so, Attorney Foreman has

essentially abandoned him and failed to act in his best interests. Appellant



3
    Pa.R.A.P. 2119(f) states:

              (f)    Discretionary aspects of sentence.             An
                     appellant who challenges the discretionary
                     aspects of a sentence in a criminal matter shall
                     set forth in his brief a concise statement of the
                     reasons relied upon for allowance of appeal
                     with respect to the discretionary aspects of a
                     sentence. The statement shall immediately
                     precede the argument on the merits with
                     respect to the discretionary aspects of
                     sentence.
4
  We note that with the deadly weapon enhancement and his prior record
score of 5, appellant’s sentence of 9 to 20 years’ incarceration fell within the
standard range of the sentencing guidelines.


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also states that in an Anders brief, counsel is required to set out the issues

in neutral form and not argue against her own client.

      Appellant simply misconstrues current Anders practice.      Pursuant to

Santiago, supra, counsel petitioning to withdraw on direct appeal must

explain why the issues his/her client wishes to pursue on appeal are

meritless.   In addition, if an attorney is of the opinion that there are no

meritorious issues to be raised on appeal and the appeal is wholly frivolous,

he or she is obligated to file a petition to withdraw and Anders brief.

Attorney Foreman was not ineffective in this regard, as appellant alleges.

      Appellant claims he requested trial counsel obtain a transcript or

recording of the 911 call.   However, appellant does not explain how the

911 call placed by Nikki after she arrived at the victim’s house could possibly

exonerate him. In addition, any claims of trial counsel ineffectiveness would

have to wait until collateral review.   See Commonwealth v. Grant, 813

A.2d 726 (Pa. 2002) (defendants should wait until the collateral review

phase to raise claims of ineffective assistance of counsel). Nor do either of

the exceptions to the Grant rule outlined in Commonwealth v. Holmes,

79 A.3d 562 (Pa. 2013), apply here.

      Appellant also argues that the victim and other Commonwealth

witnesses gave false testimony. According to appellant, there is no evidence

that the victim’s jaw was broken.       Appellant contends that at most, his

actions constituted a simple assault.



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      Contrary to appellant’s argument, there was uncontradicted medical

evidence that the victim’s jaw was, in fact, broken.         Appellant fails to

articulate what other testimony was allegedly false or perjured.        To the

extent appellant levels claims of trial counsel ineffectiveness, again, they are

not cognizable on the instant direct appeal and would have to be raised in a

timely post-conviction petition.

      Having determined that the instant appeal is wholly frivolous, and

after our own independent review, that there are no issues of arguable merit

apparent from the record, we will grant Attorney Foreman’s petition to

withdraw and affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2015




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