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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
JOSEPH GEORGE DOLENTE,                   :         No. 3275 EDA 2014
                                         :
                        Appellant        :


       Appeal from the Judgment of Sentence, September 30, 2014,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0003886-2014


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 17, 2015

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Delaware County following appellant’s conviction of

simple assault and harassment. Appointed counsel, Patrick J. Connors, Esq.,

has filed a petition to withdraw, alleging that the appeal is wholly frivolous,

accompanied by an Anders brief.1 We grant counsel’s withdrawal petition

and affirm.

      The facts giving rise to this matter are as follows. On May 13, 2014,

at approximately 10:00 p.m., appellant’s wife and two of their daughters

returned home after having dinner out.       (Notes of testimony, 9/30/14 at

12.) When they arrived, they found appellant sitting on a couch in the living


1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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room, drunk and agitated. (Id.) Appellant yelled and cursed at his wife and

daughters, and they immediately went to wife’s bedroom on the second floor

and closed the door.    (Id. at 13-14.)   Appellant followed and flung the

bedroom door open so hard it smashed a hole in the wall. (Id. at 14-15.)

Appellant proceeded to throw everything that was on the dressers, as well as

clothes, all over the bedroom while he continued to scream at his wife and

daughters. (Id. at 15-16.)

       Wife testified she had a brass headboard and footboard that were

leaning against her new bed.     (Id. at 15.)   Appellant picked up a brass

footboard and threw it at his wife and daughters, who were on the bed. (Id.

at 15-17.) The footboard hit all three. (Id. at 19.) The leg of the brass

footboard hit appellant’s wife’s right ankle which caused the ankle to swell

immediately. (Id. at 19-20.) Wife testified she experienced pain, and it felt

like “somebody kicked me with steel tipped boots on.” (Id. at 20.) During

this episode, one of appellant’s daughters telephoned the police.    (Id. at

21.)   The police arrived within minutes of the call and arrested appellant.

(Id. at 28.)

       Following a bench trial on September 30, 2014, appellant was found

guilty of simple assault along with the summary offense of harassment.

Appellant was sentenced to two years of probation.       A timely notice of

appeal was filed on October 27, 2014. In response to the trial court’s order

to file a statement of errors complained of on appeal, appellant’s counsel



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filed     a     statement       of     intent    to    file   an     Anders        brief   under

Pa.R.A.P. 1925(c)(4).2           Consequently, the trial court declined to issue a

Pa.R.A.P. 1925(a) opinion and had the record certified for transmittal to this

court.

         On February 26, 2015, appellant’s counsel filed in this court a motion

to withdraw as counsel and an Anders brief, wherein counsel states there

are no non-frivolous issues preserved for our review. “When presented with

an Anders brief, this Court may not review the merits of the underlying

issues        without   first        examining    counsel’s        petition   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:


2
    Rule 1925(c)(4) provides:

                In a criminal case, counsel may file of record and
                serve on the judge a statement of intent to file an
                [Anders] brief in lieu of filing a Statement. If, upon
                review of the [Anders] brief, the appellate court
                believes that there are arguably meritorious issues
                for review, those issues will not be waived; instead,
                the appellate court may remand for the filing of a
                Statement, a supplemental opinion pursuant to
                Rule 1925(a), or both. Upon remand, the trial court
                may, but is not required to, replace appellant’s
                counsel.

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


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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).

     Our review of Attorney Connors’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, or raise any additional points that he deems worthy of this

court’s attention, and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005).    See Daniels, 999 A.2d at 594 (“While the

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice

requirements set forth in Millisock that remain binding legal precedent.”).

As Attorney Connors has complied with all of the requirements set forth



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above, we conclude that counsel has satisfied the procedural requirements

of Anders.

      Once    counsel   has   met    his   obligations,   “it    then   becomes   the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of appellant’s appeal.

      Instantly, appellant testified he picked up the ten pound footboard,

and when he went to throw it down, it bounced and then made contact with

the lower part of his wife’s foot.    (Notes of testimony, 9/30/14 at 64-65.)

Appellant claimed it was an accident.       (Id. at 67.)        Appellant’s contention

will not afford him any relief.

      In reviewing a challenge to the sufficiency of the evidence, 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.”     Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa.Super.

2009), appeal denied, 982 A.2d 1227 (Pa. 2009), (citation omitted).

             Evidence will be deemed sufficient to support the
             verdict when it established each 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, and may sustain its burden
             by means of wholly circumstantial evidence.
             Significantly, [we] may not substitute [our]
             judgment for that of the factfinder; if the record



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            contains support for the convictions they may not be
            disturbed.

Id. (citation and quotation marks omitted).          “Any doubt about the

defendant’s guilt is to be resolved by the factfinder 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. Scott, 967

A.2d 995, 998 (Pa.Super. 2009), appeal denied, 983 A.2d 1248 (Pa.

2009).

      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.A. § 2701(a)(1). Appellant’s intentional act of picking up the

footboard and recklessly throwing it at the bed where his wife and two

daughters were located is sufficient to find appellant guilty of the crime of

simple assault.   Clearly, throwing a brass footboard at the bed created a

significant risk that the people on the bed could be struck by the footboard

and injured.   Whether the footboard bounced and hit his wife’s ankle or

directly hit wife’s ankle is of no moment.    Appellant is responsible for the

consequences of his actions. See Commonwealth v. Klein, 795 A.2d 424,

428 (Pa.Super. 2002) (a person acts intentionally with respect to a material

element of an offense if it is his conscious object to engage in conduct of

that nature or to cause such a result); Commonwealth v. Richardson,

636 A.2d 1195, 1196 (Pa.Super. 1994) (same).




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     The appeal is wholly frivolous, and our independent review of the

entire record has not disclosed any other potentially non-frivolous issues.

Consequently, we grant counsel’s petition to withdraw, and we affirm the

judgment of sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/17/2015




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