J-S67043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFERY LINCOLN HUNTER                     :
                                               :
                       Appellant               :   No. 303 MDA 2019

       Appeal from the Judgment of Sentence Entered September 6, 2017
     In the Court of Common Pleas of Lycoming County Criminal Division at
                        No(s): CP-41-CR-0000478-2016


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 10, 2020

        Appellant, Jeffery Lincoln Hunter, appeals nunc pro tunc from the

September 6, 2017, judgment of sentence entered in the Court of Common

Pleas of Lycoming County following his conviction by a jury on the charges of

simple assault and harassment.1 Additionally, Appellant’s counsel has filed a

petition seeking to withdraw her representation, as well as a brief pursuant to

Anders v. California, 386              U.S. 738, 87    S.Ct. 1396   (1967), and

Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter

“Anders brief”).       After a careful review, we grant counsel’s petition to

withdraw and affirm Appellant’s judgment of sentence.




____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 2701(a)(1) and 2709(a)(1), respectively.
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      The relevant facts and procedural history are as follows: On December

23, 2015, police charged Appellant with simple assault and harassment, and

on June 23, 2017, Appellant, who was represented by counsel, proceeded to

a jury trial.

      At trial, Tonya Coleman testified that, during the evening of November

27, 2015, she was at the Shamrock Bar in Williamsport, Pennsylvania, and at

around 7:00 or 8:00 p.m., she played darts with Appellant, whom she had

known for a few months. N.T., 6/23/17, at 13-15. Ms. Coleman testified that,

as she played darts with Appellant, they had no disagreements or fights;

however, Ms. Coleman won the dart game. Id. at 14.

      After the dart game ended, Ms. Coleman went to the bar; however,

Appellant left the establishment through the front door. Id. at 15.

Approximately five minutes later, Ms. Coleman exited via the back door. Id.

Ms. Coleman testified she intended to meet Trina Bogart outside the bar to

give her fried mushrooms, which she had ordered. Id. at 18.

      As Ms. Coleman walked alongside a sidewalk, she saw Ms. Bogart

approaching her. Id. Ms. Coleman testified she “happened to glance,” and

she saw Appellant walking up the sidewalk towards the bar. Id. at 19. Ms.

Coleman specifically testified that, while there was “not a whole lot of

lighting[,]” she recognized the person as being Appellant, particularly since

she “had just recently seen him…inside the Shamrock.” Id.




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      Ms. Coleman testified she yelled to Ms. Bogart “to watch” because she

saw Appellant approaching and was not “sure what was going to happen.” Id.

at 20. Ms. Coleman denied that she said anything to Appellant, asked him to

join the women, or threatened him. Id.

      Ms. Coleman testified she handed the fried mushrooms to Ms. Bogart,

who then began walking back towards her house. Id. at 21. Meanwhile, Ms.

Coleman continued waiting near a dumpster by the bar because she was

waiting for a friend to drive around from the front of the bar to give her some

clothes. Id. Ms. Coleman then testified as follows on direct examination:

      Q. And then what, if anything, occurred while you were there?
      A. The next thing I remember is I was waking up on the ground
      covered in blood.
      Q. Now, before you—before you woke up, who were the last
      people you remember seeing?
      A. Just Trina Bogart and [Appellant].
      Q. When you woke up covered in blood, did you figure out what
      happened?
      A. I didn’t know what happened.
      Q. Okay. Did you have any pain anywhere?
      A. My whole right side was hurting real bad.
      Q. When you say your whole right side, do you mean your whole
      body or your face?
      A. No. Just basically my face.
      Q. And were you bleeding?
      A. Yes.
      Q. Where were you bleeding from?
      A. My ears, my chin.
      Q. As a result of being struck, did you have to go to the hospital?
      A. Yes, ma’am.

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Id. at 21-22.

      Ms. Coleman testified she suffered a broken jaw, which was wired shut

for two months. Id. at 22. She also suffered injuries to her eardrum requiring

the placement of tubes. Id. at 23-24.

      On cross-examination, Ms. Coleman testified that, prior to the incident,

Ms. Bogart and Appellant were in an “off and on” romantic relationship. Id.

at 26. She testified that she, too, was in a romantic relationship with Ms.

Bogart; however, with regard to Appellant, Ms. Coleman testified that, aside

from playing darts with him on occasion, she had no other relationship with

him. Id. Ms. Coleman admitted that she did not see who actually hit her;

however, she testified that only she, Ms. Bogart, and Appellant were in the

vicinity. Id. at 29.

      On redirect examination, Ms. Coleman testified that, prior to the attack,

she remembers seeing Appellant about ten feet from her, and Ms. Bogart was

further away across the street.     Id. at 31. She cannot remember what

happened from the time she saw Appellant ten feet away from her until the

time she awoke covered in blood. Id.

      Trina Bogart testified she knew Appellant, and they had a sexual

relationship.   Id. at 35.   She indicated that, on November 27, 2015, she

planned to meet Ms. Coleman to pick up some fried mushrooms, and she saw

her standing by the dumpster outside of the Shamrock Bar. Id. at 36. She

testified that, as she walked down the street by the bar, she saw Appellant

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crossing the street.    Id. at 35-36. Ms. Bogart testified she saw Appellant

clearly.   Id. at 36.   Ms. Bogart testified the following occurred after Ms.

Coleman handed her the fried mushrooms (verbatim):

             I was leaving, getting ready to cross the street, and she
      stood behind the dumpster because she was waiting on a friend
      of ours. And she said watch, because I was in the middle of
      looking back behind me talking to her. And that’s when I turned
      and seen [Appellant] crossing—he crossed the left side of me as I
      was walking away, [and he was] walking towards her. And I was
      about 6 feet away, and I heard a thud. So I turned around, and
      that’s when I seen [Ms. Coleman] on the ground. And [Appellant]
      was walking back towards the opposite side of the Shamrock going
      towards Walnut Street. And he said that’s for telling me to shut
      up two weeks ago. And you’re lucky it was only one hit.

Id. at 37.

      Ms. Bogart clarified that Appellant directed these statements to Ms.

Coleman, who was now lying on the ground, and Appellant was about four or

five feet from Ms. Coleman. Id. at 39. Ms. Bogart testified that no one else

was in the vicinity, and she recognized Appellant’s voice.   Id. Ms. Bogart

testified she ran to Ms. Coleman, who had blood coming out of her ear, her

glasses were broken, and her face was “all messed up.” Id. at 40. Ms. Bogart

called 911 and remained with Ms. Coleman until the ambulance arrived. Id.

      On cross-examination, Ms. Bogart explained that the reason Ms.

Coleman said “to watch” when Appellant first approached was because Ms.

Bogart did not initially see him and he was close enough that, if she turned,

she “would have walked in to him.” Id. at 44. Ms. Bogart admitted she did




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not actually see Appellant strike Ms. Coleman because she was beginning to

walk away when the assault occurred. Id. at 45.

      Williamsport Police Officer Tyson Minier testified he responded to the

instant assault, and he observed Ms. Coleman lying on the ground covered in

blood. Id. at 60.

      Appellant took the stand and testified he knew Ms. Coleman from

playing darts with her at the Shamrock Bar. Id. at 62. He indicated he had

no animosity towards Ms. Coleman; however, he admitted they had a past

verbal argument when he won three straight games of darts, and Ms. Coleman

became angry. Id. at 63. Appellant indicated he and Ms. Bogart had a sexual

relationship. Id.

      With regard to the events occurring on November 27, 2015, Appellant

testified that, after he finished his game of darts with Ms. Coleman, he sat

down and drank a beer. Id. at 64. He saw Ms. Coleman walk out the back

door, and approximately ten or fifteen minutes later, after he finished his beer,

he walked out the front door and into the alley. Id. at 64-65. He testified it

was dark outside, but the area was well illuminated. Id. at 65-55.

      Appellant testified that as he left the alley he saw Ms. Coleman standing

near a telephone pole and Ms. Bogart was walking towards Appellant. Id. at

66-67.   Appellant indicated he also saw “two teenagers walking down the

street[.]” Id. at 67. Moreover, he testified he saw a man, who he did not

know, cross the street behind Ms. Bogart and walk towards Ms. Coleman. Id.


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He testified Ms. Bogart was wearing a big, Eskimo-type coat, and thus, he

could not see Ms. Coleman until he walked past Ms. Bogart. Id. at 68. After

he did so, he saw Ms. Coleman lying on the ground near the dumpster. Id.

Appellant testified he did not see anyone hit Ms. Coleman.      Id. Appellant

specifically denied that he punched or assaulted Ms. Coleman. Id. at 69. He

further denied ever physically assaulting her or having any animosity towards

her. Id.

      The Commonwealth called Ms. Coleman as a rebuttal witness, and she

testified that, on an occasion prior to the instant incident, she saw Appellant

as she was walking to the Dollar Store. Id. at 77-78. As Appellant passed

her on the street, he said “You know, I could knock you out right now if I

wanted to.” Id. at 78. Ms. Coleman testified she believes Appellant never

really liked her, and he was aware that she and Ms. Bogart had a romantic

relationship. Id. at 78-79.

      At the conclusion of all testimony, the jury convicted Appellant of the

offenses indicated supra, and on September 6, 2017, the court sentenced

Appellant to an aggregate of 10 months to 24 months minus 1 day in prison.

      On September 7, 2017, through newly-retained counsel, Appellant filed

a post-sentence motion, which included a claim that the evidence was

insufficient to support his convictions. The court denied this post-sentence

motion on November 22, 2017. Appellant filed a timely notice of appeal on




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December 15, 2017, but his appeal was dismissed on April 25, 2018, due to

appellate counsel’s failure to file a brief.

        Thereafter, Appellant filed a timely petition under the PCRA,2 and the

PCRA court granted Appellant relief. Specifically, the PCRA court permitted

Appellant to file a supplemental post-sentence motion nunc pro tunc and

reinstated Appellant’s direct appeal rights nunc pro tunc. In his supplemental

post-sentence motion, Appellant asserted the verdict was against the weight

of the evidence. The court denied this post-sentence motion on February 7,

2019.

        Appellant filed a timely, counseled notice of appeal, and the trial court

directed Appellant, through counsel, to file a concise statement of errors

complained of on appeal.           Appellant’s counsel filed a statement, which

indicated that she intended to file an Anders/McClendon brief. The trial

court filed a Pa.R.A.P. 1925(a) opinion on July 15, 2019, explaining the

reasons it denied Appellant’s post-sentence motions.

        On October 15, 2019, counsel filed in this Court a petition seeking to

withdraw her representation, as well as an Anders brief. Appellant filed no

further submissions either pro se or through privately-retained counsel.

        Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,



____________________________________________


2   Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.

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290 (Pa.Super. 2007) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal

pursuant to which 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 [appellant]; and 3) advise the [appellant] that
      he or she has the right to retain private counsel or raise additional
      arguments that the [appellant] deems worthy of the court’s
      attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders brief 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.
      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, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (citation omitted). Substantial compliance with the



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Anders requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d

1287, 1290 (Pa.Super. 2007).

      Herein, counsel contemporaneously filed her petition to withdraw as

counsel and Anders brief. Her brief and petition substantially comply with

the technical requirements of Anders and Santiago. Moreover, counsel has

provided this Court with a copy of the letter, which she sent to Appellant

advising him of his right to retain new counsel, proceed further with his case

pro se, and raise any points that he deems worthy of this Court’s attention.

See Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005).

Therefore, we proceed to examine the issues counsel identified in the Anders

brief and then conduct “a full examination of all the proceedings, to decide

whether the case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d

1190, 1195 (Pa.Super. 2018) (en banc) (quotation omitted).

      In his first issue, Appellant contends the evidence is insufficient to

sustain his convictions.   Specifically, he asserts “no one saw him hit Ms.

Coleman[.]” Appellant’s brief at 15.

      A successful sufficiency-of-the-evidence claim requires discharge.

Commonwealth v. Toritto, 67 A.3d 29 (Pa.Super. 2013) (en banc).

Whether the evidence was sufficient to sustain the charge presents a question

of law. Id. Our standard of review is de novo, and our scope of review is

plenary. Commonwealth v. Walls, 144 A.3d 926 (Pa.Super. 2016).             In

conducting our inquiry, we examine:


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      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to the
      Commonwealth as verdict-winner, [is] sufficient to establish all
      elements of the offense beyond a reasonable doubt. We may not
      weigh the evidence or substitute our judgment for that of the fact-
      finder. Additionally, the evidence at trial need not preclude every
      possibility of innocence, and the fact-finder is free to resolve any
      doubts regarding a defendant’s guilt 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. When
      evaluating the credibility and weight of the evidence, the fact-
      finder is free to believe all, part or none of the evidence. For
      purposes of our review under these principles, we must review the
      entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa.Super. 2014)

(quotation omitted).

      In this case, Appellant’s sufficiency argument is specific in nature; to

wit, he avers the evidence was insufficient to prove that he committed the

crimes. In this vein, Appellant argues no one testified they saw him strike Ms.

Coleman and, in fact, he testified that he did not strike her.

      In light of Appellant’s specific sufficiency claim, we need not conduct a

thorough review of the evidence to determine whether it can support a finding

that all of the elements have been met. Rather, we will focus on the specific

issue raised by Appellant: whether the evidence was sufficient to establish

that Appellant was the perpetrator of the crimes.

      Here, viewing the evidence in the light most favorable to the

Commonwealth, as the verdict winner, we conclude the evidence sufficiently

establishes that Appellant was the perpetrator of the crimes. As the trial court

indicated:

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             The testimony of Ms. Coleman and Ms. Bogart was sufficient
      to prove that Appellant committed [the crimes]. [They testified]
      Appellant was the only other individual in the vicinity. Appellant
      approached Ms. Coleman, she was struck, she suffered several
      injuries including a broken jaw, Appellant walked away and said,
      “That’s for telling me to shut up two weeks ago and you’re lucky
      it was only one hit.” Although Appellant denied punching Ms.
      Coleman and claimed that he saw another individual approaching
      her, the jury was not required to believe Appellant’s testimony.

Trial Court Opinion, filed 7/15/19, at 5.

      We agree with the trial court’s sound reasoning. We note the jury was

free to weigh the testimony and believe all, part, or none of a witness’s

testimony. Trinidad, supra. Moreover, contrary to Appellant’s assertion,

the Commonwealth was permitted to rely on circumstantial evidence to meet

its burden of proof. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.Super.

2016). Accordingly, we reject Appellant’s sufficiency of the evidence claim.

      In his next issue, Appellant contends the jury’s verdicts were against

the weight of the evidence. Specifically, Appellant contends the testimony of

Ms. Bogart and Ms. Coleman was incredible.       Appellant suggests the jury

should have believed his credible testimony that an unknown man committed

the crimes.

      When considering challenges to the weight of the evidence, we apply

the following precepts.   “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation


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omitted). Resolving contradictory testimony and questions of credibility are

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa.Super. 2000). It is well-settled that we cannot substitute our

judgment for that of the trier of fact. Talbert, supra.

     Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id.

     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.

Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to

prevail on a challenge to the weight of the evidence, the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Id. (quotation marks and quotation omitted).

     In the case sub judice, in rejecting Appellant’s claim, the trial court

indicated “the jury was free to believe the testimony of Ms. Coleman and Ms.

Bogart, and reject the testimony of Appellant.” Trial Court Opinion, filed

7/15/19, at 7. We agree with the trial court’s sound reasoning. Appellant

requests that we re-weigh the evidence and assess the credibility of witnesses


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presented at trial, a task that is beyond our scope of review. The jury, as

finder of fact, had the duty to determine the credibility of the testimony and

evidence presented at trial. See Commonwealth v. Collins, 70 A.3d 1245,

1251 (Pa.Super. 2013) (stating that “[a]n appellate court cannot substitute

its judgment for that of the finder of fact”). Accordingly, the trial court did

not abuse its discretion in denying Appellant’s weight of the evidence claim.

      After examining the issues contained in the Anders brief, we agree with

counsel that the appeal is wholly frivolous. “Furthermore, after conducting a

full examination of all the proceedings as required pursuant to Anders, we

discern no non-frivolous issues to be raised on appeal.” Yorgey, 188 A.3d at

1195. Thus, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

      Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/10/2020




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