J-S59017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS PAUL HUNSBERGER

                            Appellant                No. 3433 EDA 2013


          Appeal from the Judgment of Sentence November 18, 2013
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0000081-2013


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 26, 2014

        Thomas Paul Hunsberger appeals from the judgment of sentence

imposed by the Court of Common Pleas of Montgomery County following his

convictions for criminal mischief (M3)1 and disorderly conduct (M3).2

Counsel has petitioned this Court to withdraw her representation of

Hunsberger pursuant to Anders, McClendon and Santiago.3 Upon review,



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3304(a)(5).
2
    18 Pa.C.S. § 5503(a)(1).
3
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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withdraw.

      This matter stems from an incident of road rage. Early in the morning

of September 28, 2012, Melissah Murchinson was driving on City Avenue in

Lower Merion Township, Montgomery County.         At some point, Murchinson

decided to pass Hunsberger, who was driving a green Malibu. As the cars

came next to each other, Hunsberger allegedly began yelling and gesturing

to Murchinson. When Murchinson opened her window, she was met with a

barrage of racial slurs before Hunsberger spit on her car.         Murchinson

noticed that Hunsberger was following her and deviated from her destination

and called 911. While on the phone with police dispatch, Murchinson pulled

onto the shoulder of a side street.    According to Murchinson, Hunsberger

pulled up behind her, exited his vehicle and approache                        -

side door. Hunsberger then circled her car, shaking it and yelling erratically,

before approaching the rear passenger door and punching it.        After a few

minutes, Hunsberger returned to his car and drove away.

      At the direction of police dispatch, Murchinson pulled into a safe

parking lot to wait for the police.    Once the police arrived, Murchinson

explained what had transpired. At the same time, Hunsberger went to the

Lower Merion Police station to give his version of the story.      Murchinson

subsequently filed a criminal complaint and Hunsberger was arraigned on

February 13, 2013.




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       A bench trial took place on July 11, 2013. After convicting Hunsberger

of criminal mischief and disorderly conduct, the court moved directly to

sentencing an

       On July 22, 2013, Hunsberger filed a timely post-sentence motion. On

that same date, Hunsberger filed a pro se notice of appeal. Because of the

pro se filing, the court conducted a Grazier4 hearing on November 13, 2013

to determine whether Hunsberger wished to proceed pro se or with

appointed counsel.       After the court advised Hunsberger of his rights, he

chose to proceed with appointed counsel.

       On December 16, 2013, the trial court entered an order pursuant to

Pa.R.A.P 1925(b), directing the filing of a concise statement of errors

complained of on appeal.          After discovering that the clerk of courts had

incorrectly docketed the Rule 1925(b) order, the trial court extended the

time for Hunsberger to file his concise statement.

counsel filed a statement of intent to file an Anders brief with this Court

pursuant to Pa.R.A.P. 1925(c)(4).

                                           Anders brief, this Court may not review

the merits of the underlying issues without first passing on the request to

               Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.

2005). In order to withdraw pursuant to Anders and McClendon, counsel


____________________________________________


4
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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must:     (1) petition the Court for leave to withdraw, certifying that after a

thorough review of the record, counsel has concluded the issues to be raised

are wholly frivolous; (2) file a brief referring to anything in the record that

might arguably support the appeal; and (3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of

review.    Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001).       In Santiago, the Pennsylvania Supreme Court altered the

requirements for withdrawal under Anders to mandate the inclusion of a

statement detailing                reasons for concluding the appeal is frivolous.



of the record and concluded the appeal is wholly frivolous. Counsel supplied



right to proceed pro se, or with newly-retained counsel, and to raise any

other issues he believes might have merit.5 Counsel also has submitted a

brief, setting out in neutral form two issues of arguable merit.            Finally,

counsel has explained, pursuant to the dictates of Santiago, why she

believes the issues to be frivolous. See Anders Brief, at 3. Counsel having

satisfied the procedural requirements for withdrawal, we now conduct our

own review of the proceedings and render an independent judgment as to


____________________________________________


5
    Hunsberger has not filed a pro se response or brief.



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

846 A.2d 730, 736 (Pa. Super. 2004).

      On appeal, Hunsberger presents the following issues for our review:

      1.
           disorderly conduct supported by legally sufficient evidence?

      2. Did    the   trial  court abuse its discretion in denying
                             -sentence motion for a new trial based upon
           the weight of the evidence?

Brief of Appellant, at 5.

      We review a challenge to the sufficiency of the evidence as follows:

      [W]hether 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

      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 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. Caban, 60 A.3d 120, 132 (Pa. Super. 2012).

      A person is guilty of criminal mischief if he intentionally damages real

or personal property of another.          18 Pa.C.S. § 3304(a)(5).         Here,

Murchinson testified that Hunsberger punched her car and caused damage,


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after the two had a dispute on the road.      The responding police officer



both parties, and issued a citation for disorderly conduct.    Hunsberger,

however, denied punching the vehicle.      Here, the trial court found the

testimony of Murchinson and the police officer to be credible and found



free to believe all, part or none of the evidence presented. Caban, supra.

Accordingly, the Commonwealth presented sufficient evidence to prove,

beyond a reasonable doubt, that Hunsberger intentionally damaged the

personal property of another.   See Commonwealth v. Adams, 882 A.2d

496 (Pa. Super. 2005) (evidence sufficient where credible testimony of

complaining witness and police officer established appellant punched



                                                                          a

person is guilty of disorderly conduct if, with intent to cause public

inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he

engages in fighting or threatening, or in violent or tumultuous behavior. 18

Pa.C.S. § 5503(a)(1).   Here, the Commonwealth presented evidence that

Hunsberger was driving on a four-lane thoroughfare during morning rush



evidence further described Hunsberger following Murchinson onto the

shoulder of a side road where he continued to yell at Murchinson as he

circled her car, pulled at the door handles and, finally, punched her car.

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Again, the court, as trier of fact, was free to believe all, part or none of the

evidence presented. Caban, supra. Here, the trial court found testimony



testimony to be not credible.       Accordingly, the Commonwealth presented

sufficient evidence to prove, beyond a reasonable doubt, that Hunsberger

engaged     in   threatening,   violent   or   tumultuous   behavior.        See

                                , 939 A.2d 912 (Pa. Super. 2007) (evidence

sufficient where defendant confronted motorist stopped on road, used

profane language against driver, reaching into vehicle and slapped driver

with pair of gloves).

      In his second issue, Hunsberger argues that the trial court erred when

it denied his post-sentence motion for a new trial because the verdict was

against the weight of the evidence. Our standard of review of a weight of

the evidence claim is as follows:

      The finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses. As an appellate court, we cannot substitute our
      judgment for that of the finder of fact. Therefore, we will


      justice.   Our appellate courts have repeatedly emphasized that




      Furthermore,

          [W]here the trial court has ruled on the weight claim

          underlying question of whether the verdict is against the

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         weight of the evidence. Rather, appellate review is limited
         to whether the trial court palpably abused its discretion in
         ruling on the weight claim.

Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)

(citations omitted).

      Instantly, upon rendering its verdict, the trial court found both of the

                                                                         credible.



statement and his testimony at trial.        The court further noted that the



that his version of the events did not make sense.         In contrast, the court

specifically   noted   the   consistencies   in   the   statements   provided   by

Murchinson, the concessions she made in her testimony relating to damages,

and the fact that she found it necessary to call the police during her

encounter with Hunsberger.

      The court, as trier of fact, was free to believe all, part or none of the

evidence presented. Caban, supra. Here, the Honorable William J. Furber,

as fact-finder, was free to conclude from the evidence that Hunsberger

engaged in criminal mischief and disorderly conduct. We discern no abuse

of discretion by the trial court in not finding the verdict to be so contrary to



weight claim fails.




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     Ha

that the appeal is, in fact, wholly frivolous. Wright, supra. Accordingly, we

permit counsel to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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