J-S45041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID EDWARDS                              :
                                               :
                       Appellant               :   No. 2914 EDA 2018

         Appeal from the Judgment of Sentence Entered August 23, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010781-2015


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                      FILED SEPTEMBER 03, 2019

        David Edwards (Edwards) appeals from the judgment of sentence

imposed following his bench conviction of attempted murder, aggravated

assault, possession of an instrument of a crime, person not to possess a

firearm, carrying a firearm without a license, carrying a firearm in

Philadelphia, simple assault, and recklessly endangering another person.1

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

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

349 (Pa. 2009).       We grant counsel’s petition to withdraw and affirm the

judgment of sentence.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 901, 2502, 2702, 907, 6105, 6106, 6108, 2701, and 2705.
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      We derive the following facts and procedural history from our

independent review of the record. On September 25, 2015, at approximately

8:28 p.m., Edwards’ daughter, Denay Edwards (Denay), approached the

victim, Kip Sebrell (Sebrell), at a deli and asked him if he wanted to buy

marijuana. Sebrell responded that he did not and then said: “Why don’t you

give me some of that ass?” (N.T. Trial, 2/9/18, at 42). Denay yelled at him

and punched him and the argument spilled outside.       Edwards shot Sebrell

three times, striking him in each of his arms and in his stomach.        Police

responded to the scene and transported Sebrell to the hospital.

      On February 9, 2018, the trial court found Edwards guilty of the above-

listed offenses.    It deferred sentencing for preparation of a pre-sentence

investigation report (PSI). On August 23, 2018, the court sentenced Edwards

to an aggregate term of not less than eight nor more than sixteen years’

incarceration.     This timely appeal followed the denial of Edwards’ post-

sentence motion.

                                      I.

      We must first address counsel’s application to withdraw.            Both

procedural and substantive requirements must be satisfied.        Procedurally,

counsel must: (1) petition the court for leave to withdraw, stating that after

making a conscientious examination of the record, counsel has determined

that the appeal would be frivolous; (2) furnish a copy of the brief to the

defendant; and (3) advise the defendant that he or she has the right to retain


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private counsel or raise additional arguments that the defendant deems

worthy of the court’s attention. See Commonwealth v. Cartrette, 83 A.3d

1030, 1032 (Pa. Super. 2013).

      Counsel has complied with these procedural mandates. The application

indicates that counsel reviewed the entire record and concluded that the

instant appeal is wholly frivolous.   (See Petition to Withdraw as Counsel,

2/25/19, at 1-2). The application states that a copy of the Anders brief was

sent to Edwards, along with a letter appended to the application as Exhibit A.

That letter advises Edwards that he has the right to hire private counsel or

raise pro se any additional arguments he would like this Court to consider.

(See Letter from James R. Lloyd, III, Esquire to Edwards, 2/25/19).

      We now examine the substantive elements. The brief accompanying

the 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. See Santiago, supra at

361. Counsel’s Anders brief summarizes the factual and procedural history

and identifies three potential issues. (See Anders Brief, at 6-21). It cites to

portions of the record that tend to support the claims and outlines the legal

analysis that led counsel to conclude that any appeal would be frivolous. (See

id. at 25-42).


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          Because counsel has complied with the aforementioned requirements,

we now “make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.” Santiago,

supra at 355 n.5.           The Anders brief identifies three issues arguably

supporting an appeal challenging the discretionary aspects of Edwards’

sentence and the sufficiency and weight of the evidence supporting his

convictions. (See Anders Brief, at 6).

                                                II.

                                                A.

          We begin by addressing Edwards’ sentencing claim in which he argues

that the court imposed a manifestly excessive sentence without adequately

considering his serious drug addiction, lack of education, limited vocational

skills,    desire   to   return   to   lawful   employment,   his   age   (forty-six),

remorsefulness, and troubled family background. (See id. at 25-31; see also

Post Sentence Motion, 8/26/18, at 1-3; N.T. Sentencing, 8/23/18, at 5-12).

          “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018), appeal

denied, 206 A.3d 1029 (Pa. 2019) (citation omitted).           “An appellant must

satisfy a four-part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. (citation omitted). “We conduct this

four-part test to determine whether: (1) the appellant preserved the issue


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either by raising it at the time of sentencing or in a post[-]sentence motion;

(2) the appellant filed a timely notice of appeal; (3) the appellant set forth a

concise statement of reasons relied upon for the allowance of his appeal

pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial

question for our review.”       Id. (citation omitted).   “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Nevels,

203 A.3d 229, 246 (Pa. Super. 2019) (citation omitted).

        Instantly, Edwards has substantially complied with the first three prongs

of this test by raising his claim in a timely post-sentence motion, filing a timely

notice of appeal, and discussing the requirements of Rule 2119(f) in his brief.2

Additionally, Edwards’ excessiveness claim in conjunction with his assertion

that the court did not adequately consider mitigating factors presents a

substantial question. See Commonwealth v. Zeigler, 112 A.3d 656, 662

(Pa. Super. 2015). We will, therefore, address his issue on the merits.3

____________________________________________


2Although counsel did not include a separate 2119(f) statement in the context
of an Anders brief, we decline to find waiver. See Commonwealth v. Lilley,
978 A.2d 995, 998 (Pa. Super. 2009).

3   Our standard of review is as follows:

              Sentencing is a matter vested in the sound discretion of the
        sentencing judge. The standard employed when reviewing the
        discretionary aspects of sentencing is very narrow. We may



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       The record reflects that at sentencing, the trial court heard from defense

counsel regarding Edwards’ lengthy struggle with drug addiction, difficult

family background, including the murder of his father, his age and limited

education, his remorsefulness for his actions, and his desire to obtain

employment and improve himself. (See N.T. Sentencing, at 5-12). Edwards

also expressed his remorsefulness, stating “I’d like to take full responsibility

for my actions . . . I made a bad decision when it came down to protecting

my daughter. . . I would like to apologize to the victim[.]” (Id. at 40). Before

imposing its mitigated sentence on Edwards, the trial court made it clear that

it had carefully weighed all evidence and information produced during the

history of this case, including the PSI, mental health evaluation and all

mitigation evidence presented on behalf of Edwards. (See id. at 4, 41-42;

see also Order Denying Post-Sentence Motion, 9/06/18).


____________________________________________


       reverse only if the sentencing court abused its discretion or
       committed an error of law. A sentence will not be disturbed on
       appeal absent a manifest abuse of discretion. In this context, an
       abuse of discretion is not shown merely by an error in judgment.
       Rather, the appellant must establish, by reference to the record,
       that the sentencing court ignored or misapplied the law, exercised
       its judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision. We must accord
       the sentencing court’s decision great weight because it was in the
       best position to review the defendant’s character, defiance or
       indifference, and the overall effect and nature of the crime.

Nevels, supra at 247 (citation omitted).




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       As can be seen, the record demonstrates that the trial court formulated

its sentence, taking into consideration all relevant mitigating information in

Edwards’ personal history. Accordingly, his sentencing claim is frivolous

                                               B.

       Edwards next purports to challenge the sufficiency of the evidence

supporting his convictions.         (See Anders brief, at 31-40).4     However,

although this issue is framed as a sufficiency claim, the argument in support

does not set forth or dispute any specific elements of the numerous crimes

Edwards was convicted of; it does not argue which particular elements were

not met.     Instead, Edwards points to various inconsistencies between the

witnesses’ trial testimony where they did not identify or were unclear if he was




____________________________________________


       4 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.

Commonwealth v. Sebolka, 205 A.3d 329, 336–37 (Pa. Super. 2019)
(citation omitted).




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the shooter and their prior written statements where they identified him as

the shooter. (See id. at 36-40).

       It is well-settled that credibility determinations “go to the weight, not

the sufficiency of the evidence.” Commonwealth v. Bowen, 55 A.3d 1254,

1262 (Pa. Super. 2012), appeal denied, 64 A.3d 630 (Pa. 2013) (citation

omitted) (finding appellant’s sufficiency claim arguing credibility lacks merit).

A review of a sufficiency of the evidence claim does not include an assessment

of the credibility of witness testimony; such a claim goes to the weight of the

evidence. See Commonwealth v. Gibbs, 981 A.2d 274, 281–82 (Pa. Super.

2009), appeal denied, 3 A.3d 670 (Pa. 2010).            Thus, Edwards’ asserted

sufficiency of the evidence claim fails.5

                                               C.

       Edwards’ final issue argues that the trial court’s verdict was against the

weight of the evidence. (See Anders Brief, at 6, 40-42). However, this claim

is waived.

       “Pennsylvania Rule of Criminal Procedure 607 states, in relevant part,

that ‘[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’ in a written or oral motion



____________________________________________


5Moreover, after a review of the record, we conclude that when viewing the
evidence in the light most favorable to the Commonwealth as verdict winner,
see Sebolka, supra at 336, the evidence was sufficient to support Edwards’
convictions.


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before the court prior to sentencing, or in a post-sentence motion.

Pa.R.Crim.P. 607(a)(1)-(3).” Commonwealth v. Bryant, 57 A.3d 191, 196

(Pa. Super. 2012). “Moreover, the comment to the rule clearly establishes

that ‘[t]he purpose of this rule 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.’

Pa.R.Crim.P. 607, comment.” Id.

       Because the record reflects that Edwards did not raise a weight claim

prior to sentencing or in his post-sentence motion, his final issue regarding

weight of the evidence is waived.

       Furthermore, after independent review, we determine that there are no

other non-frivolous bases for appeal, and this appeal is wholly frivolous. 6

Therefore, we affirm the judgment of sentence.

       Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/19


____________________________________________


6 To the extent Edwards advances claims of ineffective assistance of counsel,
these claims are deferred for collateral review and are not reviewable in this
direct appeal. (See Anders Brief, at 42-43); see also Commonwealth v.
Holmes, 79 A.3d 562, 576 (Pa. 2013).

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