Com. v. Tukhi, J. ( 2017 )

J-S60042-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAVED TUKHI, :
:
Appellant : No. 3272 EDA 2015
Appeal from the Judgment of Sentence September 29, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006472-2014
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED August 8, 2017
This case returns to this Court after we remanded it to the trial court
in Commonwealth v. Tukhi, 149 A.3d 881 (Pa. Super. 2016). Counsel has
filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon
review, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
The factual and procedural history of this matter was summarized
thoroughly in Tukhi, 149 A.3d at 884-85. Briefly, Appellant was convicted
of aggravated assault, simple assault, and possession of an instrument of
crime, after an altercation with Joseph Brandon at Crown Fried Chicken in
Philadelphia. In Tukhi, we concluded the evidence was sufficient to sustain
Appellant’s convictions, but we denied counsel’s petition to withdraw
*Retired Senior Judge assigned to the Superior Court.
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pursuant to Anders and Santiago. Specifically, we ordered counsel to file
either a new Anders brief or an advocate’s brief on the issue of “whether
Appellant should be entitled to relief on the basis that he was not advised
adequately of his post-sentence rights following sentencing.” Tukhi, 149
A.3d at 889. On February 17, 2017, counsel for Appellant filed a new
petition to withdraw and brief pursuant to Anders and Santiago, and on
June 19, 2017, the Commonwealth filed a response. This matter is now
ready for disposition.
Because counsel has filed an Anders brief and a petition to withdraw
as counsel, the following principles guide our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are
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non-frivolous issues, we will deny the petition and remand for
the filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel once again has substantially
complied with the technical requirements set forth above.1 Therefore, we
now have the responsibility “‘to make a full examination of the proceedings
and make an independent judgment to decide whether the appeal is in fact
wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.
Super. 2015) (quoting Santiago, 978 A.2d at 354 n.5).
This Court directed counsel specifically to address “whether Appellant
should be entitled to relief on the basis that he was not advised adequately
1
Appellant has not responded to counsel’s petition to withdraw.
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of his post-sentence rights following sentencing.” Tukhi, 149 A.3d at 889.
In response, counsel acknowledges that the instructions provided by trial
counsel and the trial court to file a post-sentence motion were misleading
and resulted in a “court breakdown.” Anders Brief at 35. Counsel further
recognizes that two claims, a weight-of-the-evidence claim and a
discretionary-aspects-of-sentencing claim, are waived for review when no
post-sentence motion is filed. Thus, counsel suggests that because of the
“court breakdown,” we “find that the waiver is excused in these
circumstances and address that claim on the merits.” Id.
We agree with counsel’s analysis in this regard, and will address the
underlying issues as if they had been preserved in a post-sentence motion.
See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)
(“The courts of this Commonwealth have held that a court breakdown
occurred in instances where the trial court, at the time of sentencing, either
failed to advise Appellant of his post-sentence and appellate rights or
misadvised him.”); Commonwealth v. Malovich, 903 A.2d 1247, 1252
(Pa. Super. 2006) (“Given that Appellant was unaware of the need to
preserve claims in a motion for reconsideration, we find that he has not
waived those claims on appeal.”).
Counsel presents two issues that arguably support this appeal:
[1.] Was the verdict against the weight of the evidence and so
contrary to the evidence that it shocks one’s sense of justice
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with respect to the convictions for aggravated assault, simple
assault, and possessing an instrument of crime?
[2.] Was the sentence imposed upon [Appellant] by the [trial]
court manifestly excessive?
Anders Brief at 8 (answers below omitted).
As Appellant’s first issue challenges the weight of the evidence to
support his convictions, we begin with our well-settled standard of review.
The decision of whether to grant a new trial on the basis of a
challenge to the weight of the evidence is necessarily committed
to the sound discretion of the trial court due to the court’s
observation of the witnesses and the evidence. A trial court
should award a new trial on this ground only when the verdict is
so contrary to the evidence as to shock one’s sense of justice. A
motion alleging the verdict was against the weight of the
evidence should not be granted where it merely identifies
contradictory evidence presented by the Commonwealth and the
defendant. Our review on appeal is limited to determining
whether the trial court abused its discretion in denying the
motion for a new trial on this ground.
Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations
omitted). “Not merely an error in judgment, an abuse of discretion occurs
when the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence on record.” Commonwealth v. Handfield, 34
A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29
A.3d 3, 6 (Pa. Super. 2011)).
As counsel acknowledges, “[t]he [c]ourt found … Brandon credible
regarding the manner in which he sustained his injury at the hands of
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[Appellant].” Appellant’s Brief at 31 (citing Trial Court Opinion, 1/11/2016,
at 4). In a non-jury trial, it is the trial court’s responsibility to weigh the
evidence. See Commonwealth v. Safka, 141 A.3d 1239, 1249 (Pa. 2016).
Accordingly, we agree with counsel that any issue with respect to the weight
of the evidence is frivolous under these circumstances. Accordingly,
Appellant is not entitled to relief on this basis.
We now turn to Appellant’s challenge to the discretionary aspects of
his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533
(Pa. Super. 2006)).
Appellant’s 2119(f) statement presents the issue that Appellant’s
sentence is excessive under the circumstances. Appellant’s Brief at 43.
The determination of whether a substantial question exists
must be made on a case-by-case basis. It is only where
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an aggrieved party can articulate clear reasons why the
sentence issued by the trial court compromises the
sentencing scheme as a whole that we will find a
substantial question and review the decision of the trial
court. This [C]ourt has been inclined to find that a
substantial question exists where the appellant advances a
colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of
the Sentencing Code; or (2) contrary to the fundamental
norms underlying the sentencing process.
Also, a bald allegation that a sentence is excessive does
not raise a substantial question.
Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (citations
omitted).
Because a bald allegation of excessiveness does not raise a substantial
question, we agree with counsel that this issue is frivolous. Moreover, we
point out that Appellant was sentenced to nine to 23 months of house arrest
to be followed by one year of probation. The trial court offered the following
in support of that sentence.
[T]his [conduct] is not something to be taken lightly.
[Appellant] should be accountable for his actions. The only
reason he’s not going to prison is because he’s being otherwise
productive in his work and going to school. But he needs to
know that he can’t do something like this to people, even if they
are homeless or annoying or whatever other undesirable things
to him. I hope he knows how lucky he is.
N.T., 9/29/2015, at 10-11.
Based on the foregoing, we agree with counsel that any challenge to
the discretionary aspects of Appellant’s sentence is frivolous. Moreover, we
have conducted “a full examination of the proceedings” and conclude that
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“the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at 1248. Thus,
we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2017
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