J-S75045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTWINE HOLDER,                          :
                                          :
                    Appellant             :        No. 1104 EDA 2018

           Appeal from the Judgment of Sentence March 2, 2018
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0011307-2014

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 11, 2019

      Antwine Holder (“Holder”) appeals from the judgment of sentence

imposed following his conviction of attempted murder, aggravated assault,

kidnapping, persons not to possess firearms, firearms not to be carried

without a license, and carrying firearms on public streets or public property in

Philadelphia. See 18 Pa.C.S.A. §§ 901, 2702(a)(1), 2901(a)(2), 6105, 6106,

6108. Counsel for Holder has filed an Application to Withdraw as Counsel,

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Holder, pro se, has

filed a Response to counsel’s Application to Withdraw. Upon review, we grant

counsel’s Application to Withdraw, and affirm Holder’s judgment of sentence.

      The trial court summarized the relevant factual history underlying the

instant appeal as follows:
J-S75045-18


            On August 24, 2014, at approximately 12:30 A.M., Yanna
     Thorn [(“Thorn”]) drove her girlfriend[,] Kendra Devine
     [(“Devine”),] to the rear of Academy and Woodhaven Roads in
     Philadelphia to meet [Holder]. [] Devine planned to buy a
     designer bag from [Holder] and orchestrate a “bank Scheme” with
     him. When they arrived at the location, [Holder] got in the
     backseat behind [] Devine. [] Devine asked [Holder] where the
     bag was. [Holder] responded by drawing his gun, cocking it, and
     saying “Y’all bitches know what time it is” (N.T. 11/4/15, 84).
     [Holder] patted both women down and took their cell phones and
     money.       Dissatisfied with the amount of money, [Holder]
     demanded[,] “Where is the rest of the money[?] I’m not playing.
     I will kill y’all….” [] Devine told him that she could get more
     money from the Bank of America on Walnut Street between 38 th
     and 39th Streets. As [] Thorn drove them to the bank, [Holder]
     began beating [] Devine’s head with his gun. He then dragged
     her from the front seat to the back seat, where he continued to
     strike her with his gun and fists and began to kick and stomp on
     her as well. [Devine]—who suffers from asthma—struggled to
     breath[e], but [Holder] refused to allow her to use her inhaler.

           When they arrived at the bank, [] Devine went into the
     vestibule to withdraw money, while [Holder] held [Thorn] at
     gunpoint in the car. Four or five minutes later, [] Devine returned
     and said that she was unable to make a withdrawal and would
     have to go to a different bank at 16th Street and JFK Boulevard.
     [Holder] warned that if she kept playing games, he would kill
     them. [] Thorn drove to the JFK branch, but [Holder] refused to
     let them out of the car. Instead, he ordered [] Thorn to drive
     them to Uber Street in North Philadelphia. During the course of
     the drive, [Holder] continued to beat [] Devine.

            Once they arrived on Uber Street, [Holder] dragged []
     Devine from the car and threw her to the ground. As [] Devine
     lay face down, [Holder] kicked her head against the tire of an
     adjacent car, stomped on her upper body, and repeatedly struck
     her face with his gun. He then told [] Thorn to take [] Devine’s
     ATM card and make a withdrawal. When [] Devine said only she
     had access to the account, [Holder] ordered [] Thorn to drive away
     or he would kill her. [] Thorn drove approximately one block, and
     called the police. When the police arrived, [] Thorn brought them
     to [] Devine. [Holder] was no longer on the scene.




                                    -2-
J-S75045-18


            Using [] Devine’s phone records, police traced [Holder’s]
      phone number to his home address, where he was arrested on
      September 4, 2014. Upon executing the search warrant for the
      residence, police recovered [] Thorn’s cell phone, two firearms,
      boots and clothing matching the description [] Thorn had
      provided, and cocaine and drug paraphernalia. A swab taken from
      the bottom of [Holder’s] boots tested positive for [] Devine’s DNA.

            [] Devine had been taken from the scene of the assault to
      Hahnemann University Hospital, where she remained in the
      Intensive Care Unit for more than a month. She suffered from a
      right subdural hemorrhage, requiring two surgeries. She was
      unable to breath[e] or eat on her own.          She received a
      tracheotomy[,] and a feeding tube was inserted directly into her
      stomach. She also suffered multiple facial fractures and chipped
      teeth. At the time of trial—more than one year after the brutal
      assault—[] Devine could no longer use her right hand, was still
      attending speech, occupational, and physical therapy three times
      a week, was wheelchair[-]bound, and was unable to use the
      bathroom on her own.

Trial Court Opinion, 1/27/17, at 1-3 (footnote and internal citations omitted).

      Following a jury trial, Holder was convicted of the above-described

crimes.   The trial court deferred sentencing and ordered a pre-sentence

investigation report. On February 24, 2016, the trial court sentenced Holder

to an aggregate term of 44 to 102 years in prison. Relevant to this appeal,

the trial court imposed a prison term of 20 to 40 years for Holder’s kidnapping

conviction. On March 7, 2016, Holder filed a Motion for Reconsideration, which

the trial court denied.

      On appeal, this Court vacated Holder’s sentence and remanded for

resentencing, concluding that the trial court’s imposition of a “second strike”

sentence for kidnapping violated the statutory maximum for that crime.

Commonwealth v. Holder, 181 A.3d 1279 (Pa. Super. 2017) (unpublished

                                     -3-
J-S75045-18


memorandum at 2). On remand, the trial court conducted another sentencing

hearing, after which it modified Holder’s kidnapping sentence to 10 to 20

years, and re-imposed the same sentence for the remaining crimes.

Thereafter, Holder filed the instant timely appeal. Upon the trial court’s Order,

counsel filed a Pa.R.A.P. 1925(c)(4) Notice of intent to file an Anders brief in

lieu of a concise statement of matters complained of on appeal. The trial court

did not file a Rule 1925(a) opinion.

      As a preliminary matter, we address counsel’s Application to Withdraw.

“When 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) (citation

omitted).   In order for counsel to withdraw from an appeal pursuant to

Anders, our Supreme Court has determined that counsel must meet certain

requirements, including:

      (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.

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




                                       -4-
J-S75045-18


       In the instant case, counsel has substantially complied with all of the

requirements of Anders, as articulated in Santiago. See Commonwealth

v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders). In his Application to

Withdraw, Holder’s counsel indicates that he has made a conscientious

examination of the record and determined that an appeal would be frivolous.

Application to Withdraw, 8/13/18, at ¶ 4. Further, counsel’s Anders Brief

comports with the requirements set forth by the Supreme Court of

Pennsylvania in Santiago. Finally, counsel provided Holder with a copy of the

Anders Brief, and advised Holder of his rights to retain new counsel, or to

raise any additional points deemed worthy of the Court’s attention. See id.,

¶ 8.   Thus, counsel has complied with the procedural requirements for

withdrawing from representation. We next examine the record and make an

independent determination of whether Holder’s appeal is, in fact, wholly

frivolous. See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.

2018) (en banc) (noting that Anders requires the reviewing court to “review

‘the case’ as presented in the entire record[,] with consideration first of issues

raised by counsel.”).

       The Anders Brief presents the following claims for our review:

       [1.] Was the verdict against the weight of the evidence to such a
       degree that it shocks one’s conscience?

       [2.] Was the sentence imposed upon [Holder] by the [trial] court
       manifestly excessive?


                                      -5-
J-S75045-18


Anders Brief at 5 (issues renumbered). In his pro se Response to counsel’s

Application to Withdraw, Holder again challenges his sentences as excessive,

and additionally questions whether “the victims suffer[ed] bodily injury or

harm sufficient enough to statutorily fall under the sentence imposed for

attempted murder?” Pro Se Response, 11/1/18, at 3 (unnumbered).

      In the Anders Brief, Holder first claims that the verdict is against the

weight of the evidence. Anders Brief at 21. Counsel correctly points out that

such claim is waived, as Holder did not file a post-sentence motion challenging

the verdict as against the weight of the evidence. Id. We agree.

      Pennsylvania Rule of Criminal Procedure 607(A) provides 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: (1) orally, on the record, at any

time before sentencing; (2) by written motion at any time before sentencing;

or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). As our Supreme

Court has explained,

      [t]he decision to grant or deny a motion for a new trial based upon
      a claim that the verdict is against the weight of the evidence is
      within the sound discretion of the trial court. Commonwealth v.
      Cousar, 593 Pa. 204, 928 A.2d 1025, 1033, 1036 (Pa. 2007).
      Thus, “the function of an appellate court on appeal is to review
      the trial court’s exercise of discretion based upon a review of the
      record, rather than to consider de novo the underlying question of
      the weight of the evidence.” Commonwealth v. Rivera, 603 Pa.
      340, 983 A.2d 1211, 1225 (Pa. 2009). An appellate court may
      not overturn the trial court’s decision unless the trial court
      “palpably abused its discretion in ruling on the weight claim.”
      Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408
      (Pa. 2003). Further, in reviewing a challenge to the weight of the
      evidence, a verdict will be overturned only if it is “so contrary to

                                     -6-
J-S75045-18


        the evidence as to shock one’s sense of justice.” Commonwealth
        v. Diggs, 597 Pa. 28, 949 A.2d 873, 879 (Pa. 2008).

Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016).

        Instantly, Holder did not preserve his challenge to verdict as against the

weight of the evidence before the trial court by any of the methods set forth

in Rule 607(A).      Because we would be unable to review the trial court’s

exercise of its discretion, Holder’s claim in this appeal is waived and frivolous.1

        In the Anders Brief, and in Holder’s Pro Se Response, Holder claims

that his sentence is excessive. Anders Brief at 24; Pro Se Response, 11/1/18,

at 3-4 (unnumbered). Counsel, however, explains that Holder failed to file a

post-sentence motion raising this claim and, consequently, it is waived and

frivolous. Anders Brief at 24. In his Pro Se Response, Holder argues that his

present counsel rendered ineffective assistance by failing to preserve this

claim in a post-sentence motion. Pro Se Response, 11/1/18, at 3-4.

        An appeal challenging the discretionary aspects of sentencing is not an

appeal as of right. Commonwealth v. Flowers, 137 A.3d 1262, 1252 (Pa.


____________________________________________


1   Holder’s counsel properly points out that,

        [t]o the extent that [] Holder was deprived of his right to effective
        assistance of counsel due to a failure to raise a claim that the
        verdict is against the weight of the evidence, this claim may be
        more properly raised in the context of a claim under the Post[]
        Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq.

Anders Brief at 21.



                                           -7-
J-S75045-18


Super. 2015). An appellant must meet the requirements that the appeal was

timely; the issues were preserved; and that his brief contains a concise

statement    of   the   reasons   relied    upon   for   allowance   of   appeal.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006). “To

preserve an attack on the discretionary aspects of sentence, an appellant must

raise his issues at sentencing or in a post-sentence motion.” Id. at 1251.

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing[,] or in a motion to modify the

sentence imposed at that hearing.”         Commonwealth v. Evans, 901 A.2d

528, 533-34 (Pa. Super. 2006); see also Pa.R.A.P. 302(a) (stating that an

issue cannot be raised for the first time on appeal). Because Holder did not

raise this claim in at sentencing or in a post-sentence motion, it is waived.

See id. To the extent that Holder claims that his counsel rendered ineffective

assistance by failing to file a post-sentence motion, such claim may be raised

in the context of a claim under the PCRA.

      In his Pro Se Response, Holder additionally claims that the victims did

not suffer “bodily injury sufficient enough to statutorily fall under the sentence

imposed for attempted murder.”              Pro Se Response, 11/1/18, at 3

(unnumbered). However, Holder provides no additional argument to support

his sufficiency challenge.

      As our Supreme Court has explained,

      [c]hallenges to the sufficiency of the evidence are governed by
      our familiar and well-established standard of review. We consider

                                      -8-
J-S75045-18


     the evidence presented at trial de novo. We are obliged to
     evaluate that evidence in the light most favorable to the
     Commonwealth, as the verdict winner, and we draw all reasonable
     inferences therefrom in the Commonwealth’s favor. Through this
     lens, we must ascertain whether the Commonwealth proved all of
     the elements of the crime at issue beyond a reasonable doubt.
     This is a question of law. Our scope of review is plenary.

Commonwealth v. Chambers, 188 A.3d 400, 409 (Pa. 2018) (citations

omitted).

     A conviction for attempted murder requires the Commonwealth to prove

beyond a reasonable doubt that the defendant had the specific intent to kill

and took a substantial step towards that goal. 18 Pa.C.S.A. §§ 901, 2502.

     In this case, the Commonwealth presented evidence that Holder

threatened to kill Devine and Thorn.    N.T., 11/4/15, at 90.   Further, the

evidence established that while Thorn drove Devine and Holder, Holder beat

Devine on the head with his gun; Holder dragged Devine from the front seat

to the back seat, where he continued striking Devine with his guns and fist;

Holder stomped on Devine; Holder continued these actions while Devine who

had asthma, struggled to breathe; and as Devine struggled to breathe, Holder

refused to allow Devine to use her inhaler. Id. at 82, 84, 88, 90-92, 95-97,

162, 166. Further, Holder subsequently dragged Devine from the car, kicked

her head against the tire of an adjacent car, stomped on her upper body, and

struck her face with his firearm. Id. at 105-10, 171. This evidence is amply

sufficient to establish that Holder has a specific intent to kill, and took a

substantial step towards that goal. See 18 Pa.C.S.A. §§ 901, 2502.


                                    -9-
J-S75045-18


     Following our independent review of the record, we agree the appeal is

frivolous, and grant counsel’s Application to Withdraw. Accordingly, we affirm

Holder’s judgment of sentence.

     Application to Withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/19




                                    - 10 -
