Com. v. Shuman, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TORY XAVIER SHUMAN,
Appellant No. 962 MDA 2017
Appeal from the Judgment of Sentence Entered April 12, 2017
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001569-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 01, 2018
Appellant, Tory Xavier Shuman, appeals from the judgment of sentence
of one to twelve months’ incarceration, imposed after he was convicted by a
jury of simple assault, 18 Pa.C.S. § 2701, and recklessly endangering another
person (REAP), 18 P.C.S. § 2705. Appellant seeks to challenge the sufficiency
of the evidence to sustain his conviction of simple assault. Additionally,
Appellant’s counsel, Kent D. Watkins, Esq., seeks to withdraw his
representation of Appellant pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After
careful review, we affirm Appellant’s judgment of sentence and grant counsel’s
petition to withdraw.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant was convicted of the above-stated charges following a jury
trial on February 6, 2017. On April 12, 2017, he was sentenced to 1 to 12
months’ incarceration for his simple assault offense. His conviction for REAP
merged for sentencing purposes. Appellant filed a timely notice of appeal
from the imposition of his sentence. On May 19, 2017, the court issued an
order directing Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Appellant timely complied with that order,
filing a concise statement that raised the following claim: “There was
insufficient evidence of intent to support a finding of simple assault. The
verdict is contrary to law.” Rule 1925(b) Statement, 6/13/17, at 1 (single
page). On June 28, 2017, the trial court filed a Rule 1925(a) opinion.
On September 26, 2017, Attorney Watkins filed with this Court an
“Application to Withdraw As Counsel,” as well as a “no merit” letter pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). A
Turner/Finley no merit letter is the proper filing where counsel seeks to
withdraw on appeal from the denial of post-conviction relief; however, where,
as here, counsel seeks to withdraw on direct appeal, he or she must comply
with the more stringent dictates of Anders/Santiago. See Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). Consequently, on
October 4, 2017, this Court issued an order directing Attorney Watkins to
comply with Anders/Santiago by filing a brief referring to any issues that
might arguably support Appellant’s appeal.
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On November 2, 2017, Attorney Watkins filed an Anders brief.
Thereafter, upon reviewing the record in this case, we ascertained that counsel
had not filed a proof of service demonstrating that he had served Appellant
with his petition to withdraw and Anders brief. Accordingly, on February 22,
2018, this Court filed a memorandum decision directing Attorney Watkins to
file that proof of service. On April 6, 2018, counsel complied with that order,
demonstrating that he has provided Appellant with a copy of the pertinent
documents via first class mail.
Thus, we will now review whether Attorney Watkins has satisfied the
other requirements for withdrawal. Our Court has explained those
requirements, as follows:
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The 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, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his 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.”
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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied the technical requirements of
Anders/Santiago, this Court must then “conduct an independent review of
the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015) (citations and footnote omitted).
In this case, Attorney Watkins’ Anders brief substantially complies with
the above-stated requirements. Namely, he includes a summary of the
relevant factual and procedural history, and he refers to portions of the record
that could arguably support Appellant’s claim. While Attorney Watkins does
not specifically state in his Anders brief that Appellant’s appeal is frivolous,
his discussion of why Appellant’s sufficiency-of-the-evidence challenge fails is
adequate to convey that counsel has made a determination of frivolity.
Counsel also explains his reasons for reaching that determination, and
supports his rationale with citations to the record and pertinent legal authority.
Again, as discussed, supra, Attorney Watkins has filed a proof of service
demonstrating that he has sent Appellant copies of the Anders brief and his
petition to withdraw. In counsel’s petition to withdraw, he advises Appellant
of the rights enumerated in Nischan. Accordingly, we conclude that counsel
has substantially complied with the technical requirements for withdrawal.
We will now independently review the record to determine if Appellant’s
issue is frivolous, and to ascertain if there are any other, non-frivolous issues
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he could pursue on appeal. First, we set forth our well-settled standard of
review:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant contends that the Commonwealth failed to present
sufficient evidence to sustain his conviction of simple assault, defined as
follows:
(a) Offense defined.-- Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if he:
…
(3) attempts by physical menace to put another in fear of
imminent serious bodily injury[.]
18 Pa.C.S. § 2701(a)(3).
According to Appellant, the Commonwealth did not demonstrate that he
had the intent to place the victim in fear of serious bodily injury. The record
clearly belies this claim. As the trial court summarizes:
At trial, Alberto Rosario testified that [Appellant] invited
Willie Velazquez to fight and then took out a pistol and said, “Look
what I have for you.” Velazquez then retreated into his house
followed by [Appellant,] who pointed his gun at Velazquez’s head.
(N.T.[, at] 14[-1]6).
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Magali Serrano testified that she saw [Appellant] point a gun
at Velazquez’s face, cock the weapon, and tell Velazquez that he
was going to blow his head off. ([Id. at] 22-24).
Velazquez testified that [Appellant] pointed a gun at his
face, followed him into [his] house, and threatened to blow his
head off. ([Id. at] 32).
Trial Court Opinion, 6/28/17, at 2.
In light of the testimony of these three witnesses, the Commonwealth’s
evidence was clearly sufficient to prove that Appellant intended to place
Velazquez in fear of serious bodily injury when he pointed a gun at Velazquez’s
head, cocked the weapon, and threatened to “blow [Velazquez’s] head off.”
N.T. at 32. “[T]he act of pointing a gun at another person [can] constitute
simple assault as an attempt by physical menace to put another in fear of
imminent serious bodily injury.” Commonwealth v. Reynolds, 835 A.2d
720, 726 (Pa. Super. 2003) (citation omitted). In Reynolds, this Court held
that Reynold’s act of “pointing [a] gun at the victims and threatening their
lives” was sufficient evidence of “his intent to place the victims ‘in fear of
imminent seriously bodily injury through the use of menacing or frightening
activity.’” Id. at 727 (quoting Commonwealth v. Repko, 817 A.2d 549, 554
(Pa. Super. 2003)). Pursuant to Reynolds, we conclude that Appellant’s
conduct in the present case was sufficient to demonstrate that he intended to
place Velazquez in fear of imminent serious bodily injury.
Therefore, we agree with Attorney Watkins that the issue Appellant
seeks to raise on appeal is frivolous. Additionally, our independent review of
the record does not reveal any other, non-frivolous claims that Appellant could
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raise herein. Consequently, we grant counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judge Lazarus joins this memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2018
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