Com. v. Febres, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSE MANUEL FEBRES :
:
Appellant : No. 601 MDA 2019
Appeal from the Judgment of Sentence Entered March 22, 2019
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000164-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 26, 2020
Appellant, Jose Manuel Febres, appeals from the Judgment of Sentence
entered in the Mifflin County Court of Common Pleas following his conviction
for Criminal Attempt-Criminal Homicide, Aggravated Assault, Aggravated
Assault with a Deadly Weapon, Terroristic Threats, two counts Recklessly
Endangering Another Person (“REAP”), and Simple Assault.1 With this appeal,
Appellant’s counsel has filed a Petition to Withdraw as Counsel and an Anders2
brief. After careful review, we affirm the Judgment of Sentence and grant
counsel’s Petition to Withdraw.
We glean the following facts from the certified record. The Victim had
an on-and-off-again relationship with Appellant. Appellant had threatened the
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118 Pa.C.S. §§ 901(a), 2501, 2702(a)(1), 2702(a)(4), 2706(a)(1), 2705, and
2701(a)(1), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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Victim in the past, informing her that if he ever saw her with another man, he
would beat her and the other man.
In February 2018, the Victim lived with her then-3 year old son, Tresa
Walker, and Dwayne Jones. On February 25, 2018, the Victim spent the day
with a male friend. Her male friend dropped her off at her house around 3:00
PM; Appellant and Mr. Jones were on the porch when the Victim returned
home.
Later that day, around 5:00 PM, Mr. Jones prepared dinner in the kitchen
while Appellant, Ms. Walker, and the Victim and her son sat in the living room.
The Victim was sitting in a chair and began chatting with a male friend on her
cellphone. Appellant then approached the Victim, stood over her, and
instructed her to turn off her phone. The Victim turned off her phone and told
Appellant “don’t put your hands on me.” N.T. Trial, 1/15/19, at 37. Appellant
began punching the Victim and then stabbed the Victim with a kitchen knife.
Ms. Walker screamed that Appellant was hitting and stabbing the Victim, and
Mr. Jones ran into the living room to intervene. A struggled ensued, in which
Mr. Jones threw Appellant into a television. However, Appellant got up and
stabbed the Victim, yelling “bitch, I’m gonna kill you.” Id. at 42. Mr. Jones
then grabbed Appellant and pushed him out the door. However, Appellant re-
entered the house and again stabbed the Victim. Mr. Jones then threw
Appellant on the porch and locked the door.
The Victim sustained injuries to her cheek, nasal bridge, chest, left
shoulder, and hands. After Ms. Walker called 911, the Victim was transported
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to the Lewisburg Hospital. Due to the severity of her injuries, a helicopter
transported the Victim to the Altoona Trauma Emergency Room, where
medical staff used surgical staples and sutures to treat her lacerations.
Appellant was arrested and charged with the above crimes. A two-day
jury trial commenced on January 15, 2019, in which the Commonwealth
presented testimony from the Victim, Mr. Jones, Ms. Walker, and Megan
Morris, an expert witness physician assistant who treated the Victim.
On January 16, 2019, Appellant was convicted of the above crimes. The
court ordered a pre-sentence investigation (“PSI”) report, and subsequently,
on March 22, 2019, sentenced Appellant to an aggregate term of 21 to 42
years of imprisonment.3 Appellant did not file a post-sentence motion.
Appellant timely filed a Notice of Appeal. Thereafter, counsel filed a
Statement of Intent to File an Anders Brief. See Pa.R.A.P. 1925(c)(4).
Accordingly, the trial court did not file a Rule 1925(a) Opinion.
Appellant’s counsel filed two Anders Briefs and a Petition to Withdraw
as Counsel with this Court. However, following this Court’s review of counsel’s
Anders briefs, we concluded that counsel failed to comply with Anders and
denied counsel’s Petition to Withdraw. Commonwealth v. Febres, No. 601
MDA 2019, unpublished memorandum (Pa. Super. filed Nov. 31, 2019). We
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3For sentencing purposes, the trial court merged one count REAP, Aggravated
Assault, Aggravated Assault with a Deadly Weapon, Terroristic Threats, and
Simple Assault convictions with the Criminal Attempt-Criminal Homicide
conviction.
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instructed counsel to file either a compliant Anders brief or an advocate’s
brief, and afforded the Commonwealth and Appellant 14 days to respond.
Appellant’s counsel filed an Amended Anders Brief challenging the
sufficiency of evidence and Appellant’s sentence, and raising a claim of newly
discovered evidence. Amended Anders Br. at 4-9 (unpaginated). The
Commonwealth and Appellant have not filed a response.
As a preliminary matter, we address counsel’s request to withdraw as
counsel. “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 the following requirements:
(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).
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Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that he sent Appellant a copy of
the Anders Brief and Petition to Withdraw, as well as a letter explaining to
Appellant that he has the right to retain new counsel, proceed pro se, or to
raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,
751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will first
address the substantive issues raised in the Anders Brief. Subsequently, we
must “make a full examination of the proceedings and make an independent
judgment as to whether the appeal is in fact wholly frivolous.” Santiago, 978
A.2d at 355 n.5 (citation omitted). See also Commonwealth v. Yorgey, 188
A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders requires the
reviewing court to “review ‘the case’ as presented in the entire record with
consideration first of issues raised by counsel”).
Issue 1: Sufficiency of the Evidence
In his first issue, Appellant challenges the sufficiency of evidence
supporting all seven of his convictions—one count of Criminal Attempt-
Criminal Homicide, Aggravated Assault, Aggravated Assault with a Deadly
Weapon, Terroristic Threats, and Simple Assault, and two counts of REAP. See
Amended Anders Br. at 4-7 (unpaginated).
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur standard
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of review is de novo and our scope of review is plenary.” Commonwealth v.
Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted). In
reviewing a sufficiency challenge, we determine “whether the evidence at trial,
and all reasonable inferences derived therefrom, when viewed in the light
most favorable to the Commonwealth as verdict winner, are sufficient to
establish all elements of the offense beyond a reasonable doubt.”
Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). “Further, a
conviction may be sustained wholly on circumstantial evidence, and the trier
of fact—while passing on the credibility of the witnesses and the weight of the
evidence—is free to believe all, part, or none of the evidence.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017). “In
conducting this review, the appellate court may not weigh the evidence and
substitute its judgment for the fact-finder.” Id.Criminal Attempt-Criminal Homicide, Aggravated Assault, Simple
Assault
Pursuant to the Crimes Code, “[a] person commits attempt when, with
intent to commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime.” 18 Pa.C.S. § 901.
Further, “[a] person is guilty of criminal homicide if he intentionally,
knowingly, recklessly or negligently causes the death of another human
being.” 18 Pa.C.S. § 2501. “The use of a deadly weapon on a vital part of the
human body is sufficient to establish the specific intent to
kill.” Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005). The
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chest is considered a vital part of the body. Commonwealth v. Hanible, 836
A.2d 36, 39 (Pa. 2003). Thus, with respect to the Criminal Attempt-Criminal
Homicide charge, the Commonwealth was required to present evidence to
show that Appellant committed a substantial step toward intentionally causing
the death of another human being. 18 Pa.C.S. §§ 901, 2501
A person is guilty of Aggravated Assault if he “attempts to cause serious
bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life[.]” 18 Pa.C.S. § 2702(a).
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. § 2701(a)(1).
“Deadly weapon” is defined as “any . . . device or instrumentality which,
in the manner in which it is used or intended to be used, is calculated or likely
to produce death or serious bodily injury.” 18 Pa.C.S. § 2301. “Serious bodily
injury” is defined as “[b]odily injury which creates a substantial risk of death
or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” Id. Additionally,
“bodily injury” constitutes “[i]mpairment of physical condition or substantial
pain.” Id.
Aggravated Assault and Simple Assault are lesser-included offenses of
Criminal Attempt-Criminal Homicide when premised on the same
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act. Commonwealth v. Hilliard, 172 A.3d 5, 13 (Pa. Super. 2017); see
Commonwealth v. Brown, 605 A.2d 429, 432 (Pa. Super. 1992) (finding
that the elements of simple assault are met by a conviction
for aggravated assault). Thus, evidence sufficient to prove Criminal Attempt-
Criminal Homicide is also sufficient to prove Aggravated Assault and Simple
Assault. See Hilliard, 172 A.3d at 13; Brown, 605 A.2d at 432.
The Commonwealth presented evidence sufficient to establish every
element of Criminal Attempt-Criminal Homicide. The Victim testified that on
February 25, 2018, Appellant stabbed her multiple times with a four-to-five
inch long kitchen knife in the face, chest, left shoulder, and hands while yelling
“bitch, I’m gonna kill you.” N.T. Trial at 42, 50. She testified that she was
bleeding heavily from her wounds and was admitted to Altoona Hospital to
treat her injuries. Id. at 43. She indicated that she had scars on her chest,
shoulder, face, and hands from the attack. Id. at 47-49. Ms. Morris testified
that she assisted in treating the Victim’s face, chest, shoulder, and hand
wounds at Altoona Hospital with surgical staples and sutures. Id. at 139. She
opined that the Victim’s chest wound was approximately 3 to 4 centimeters
long and her facial laceration was approximately 7 centimeters long. Id. at
139-40.
The evidence elicited at trial, when viewed in the light most favorable to
the Commonwealth demonstrates that Appellant stabbed the Victim in her
chest, a vital part of her body, with a knife while threatening to kill her.
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Additionally, the attack caused the Victim serious bodily injury—lacerations
requiring the need for surgical sutures and staples and resulting in scarring.
Thus, the Commonwealth presented evidence to show that Appellant
committed a substantial step toward intentionally causing the death of another
human being. The evidence was, therefore, sufficient to sustain Appellant's
convictions for Criminal Attempt-Criminal Homicide. Accordingly, the evidence
was also sufficient to prove Aggravated Assault and Simple Assault. See
Hilliard, 172 A.3d at 13; Brown, 605 A.2d at 432. Appellant’s challenges to
these convictions, therefore, have no merit.
Aggravated Assault with a Deadly Weapon
A person is guilty of Aggravated Assault with a Deadly Weapon if he
“attempts to cause or intentionally or knowingly causes bodily injury to
another with a deadly weapon[.]” 18 Pa.C.S. § 2702(a)(4).4
The Commonwealth presented evidence sufficient to establish each
element of Aggravated Assault with a Deadly Weapon. As discussed above,
the Victim testified that on February 25, 2018, Appellant stabbed her multiple
times with a kitchen knife in the face, chest, left shoulder, and hands while
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4 Aggravated Assault under 18 Pa.C.S. § 2702(a)(4) is not a lesser-included
offense of Criminal Attempt-Criminal Homicide because Subsection (a)(4)
requires the Commonwealth to demonstrate the use of a deadly weapon,
whereas the elements of Criminal Attempt-Criminal Homicide do not. See 18
Pa.C.S. §§ 901(a), 2502(a). ). Here, however, the Commonwealth proved
Criminal Attempt-Criminal Homicide by demonstrating Appellant used a
deadly weapon on a vital part of the Victim’s body. See Randolph, 873 A.2d
at 1281.
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threatening to kill her. N.T. Trial at 38-39, 42, 50. She explained that she was
bleeding heavily from her stab wounds, which required treatment with staples
and sutures. Id. at 44. She testified that as a result of the attack, she suffers
from damaged nerves, pain, and limited use of her hand. Id. at 44-45.
The evidence elicited at trial, when viewed in the light most favorable to
the Commonwealth demonstrates that Appellant intentionally caused bodily
injury to the Victim with a deadly weapon. Accordingly, the evidence was
sufficient to Aggravated Assault with a Deadly Weapon and Appellant’s
challenge to this conviction is meritless.
Terroristic Threats
A person commits the crime of Terroristic Threats “if the person
communicates, either directly or indirectly, a threat to [ ] commit any crime
of violence with intent to terrorize another. . . . ” 18 Pa.C.S. § 2706(a)(1). To
convict a defendant of Terroristic Threats, “the Commonwealth must prove
that 1) the defendant made a threat to commit a crime of violence, and 2) the
threat was communicated with the intent to terrorize another or with reckless
disregard for the risk of causing terror.” Commonwealth v. Beasley, 138
A.3d 39, 46 (Pa. Super. 2016) (citations omitted).
The Official Comment to Section 2706 explains that “[t[he purpose of
th[is] section is to impose criminal liability on persons who make threats which
seriously impair personal security. . . . It is not intended by this section to
penalize mere spur-of-the-moment threats which result from anger.” 18
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Pa.C.S. § 2706 cmt. This Court has held that “being angry does not render a
person incapable of forming the intent to terrorize. In re J.H., 797 A.2d 260,
263 (Pa. Super. 2002)(citation omitted). Rather, “this Court must consider
the totality of the circumstances to determine whether the threat was a result
of a heated verbal exchange or confrontation.” Id.The Commonwealth presented evidence sufficient to establish each
element of Terroristic Threats. The Victim testified that on February 25, 2018,
Appellant punched her and then stabbed her multiple times with a kitchen
knife in the face, chest, left shoulder, and hands while threatening to kill her.
N.T. Trial at 38-39, 42, 50.
The evidence elicited at trial, when viewed in the light most favorable to
the Commonwealth, demonstrates that Appellant made a threat to commit a
crime of violence with the intent to terrorize the Victim and did, in fact,
attempt to commit the crime of violence he threatened to commit.
Accordingly, the evidence was sufficient to establish Terroristic Threats and
Appellant’s challenge to this conviction is meritless.
REAP
Appellant was convicted of two counts of REAP, one for recklessly
endangering the Victim’s three-year old child and one for recklessly
endangering Ms. Walker.
“A person commits [REAP] if he recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
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injury.” 18 Pa.C.S. § 2705. REAP “is a crime directed against reckless conduct
entailing a serious risk to life or limb out of proportion to any utility the conduct
might have.” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super.
2014) (citation omitted). “A person acts in a reckless manner when he
consciously disregards a substantial and unjustifiable risk.” Id. (citing 18
Pa.C.S. § 302(b)(3)).
The Commonwealth presented evidence sufficient to establish REAP.
The Victim testified that when Appellant stabbed her on February 25, 2018,
she was sitting on a chair next to her three-year old son and Ms. Walker, who
were both sitting on a loveseat. N.T. Trial at 57. The Victim recalled that when
Appellant was attacking her, she told Ms. Walker to grab her son and get out
of the living room. Id. at 66. Mr. Jones testified that the Victim, her son, and
Ms. Walker were in the living room during the attack, and he was concerned
for the Victim’s son when he realized Appellant was stabbing the Victim
“because [her son] was right there.” Id. 76-77.
The evidence, viewed in a light most favorable to the Commonwealth
established that Appellant recklessly engaged in conduct—stabbing the Victim
in close proximity to her three-year old child and Ms. Walker, which placed
them in danger of death or serious bodily injury. Accordingly, the evidence
was sufficient to establish both REAP counts, and Appellant’s challenge to
these convictions is meritless.
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Issue 2: Sentencing
In his second issue, Appellant challenges the discretionary aspects of
his sentence, asserting that his sentence is “manifestly unreasonable” and
“unduly harsh.” Amended Anders Br. at 8 (unpaginated).
A challenge to discretionary aspects of a sentence is not reviewable as
a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.
Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction
by, inter alia, preserving a challenge at sentencing or in a post-sentence
motion. Id. “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.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa. Super. 2013).
Here, Appellant did not preserve this challenge at his sentencing hearing
or thereafter in a Post-Sentence Motion. Accordingly, he has waived any
challenge to discretionary aspects of his sentence.
When an appellant fails to raise an issue before the trial court and has,
thus, waived the issue on direct appeal, the courts consider that issue
“frivolous” for purposes of an Anders analysis. Commonwealth v. Tukhi,
149 A.3d 881, 888-89 (Pa. Super. 2016); Commonwealth v. Kalichak, 943
A.2d 285, 291 (Pa. Super. 2008). Accordingly, we agree with counsel that
Appellant's discretionary aspects of sentencing challenge raised in
counsel's Anders Brief is frivolous.
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Issue 3: Newly Discovered Evidence
In his third issue, Appellant purports to raise a claim of newly discovered
evidence. Amended Anders Br. at 8 (unpaginated). Appellant asserts that
after trial, his grandmother informed him that the Victim had been fired from
her job as a sales person, which contradicted her testimony that she had quit
her job. Id. Therefore, he contends that this evidence would compel a
different verdict. Id. at 9.
A claim of newly discovered evidence may be raised for the first time on
appeal. Commonwealth v. Rivera, 939 A.2d 355, 358 (Pa. Super. 2007).
To warrant relief, newly discovered evidence must: (1) not have been obtained
before the conclusion of the trial by reasonable diligence; (2) not be merely
corroborative or cumulative; (3) not be used solely for purposes of
impeachment; and (4) be of such a nature and character that a different
outcome is likely. Id. at 359.
In his Anders Brief, counsel fails to set forth the newly discovered
evidence four-prong test. See Amended Anders Br. at 8-9 (unpaginated).
Nevertheless, counsel acknowledges that new evidence used only for the
purpose to impeach credibility does not warrant relief as newly discovered
evidence. Id. at 9.
We agree that Appellant’s claim does not warrant relief because his
alleged new evidence would be used solely for the purpose to impeach the
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Victim’s credibility. Rivera, supra at 359. Accordingly, this claim has no
merit.
Conclusion
Additionally, our independent review of the record does not reveal any
non-frivolous arguments available to Appellant. Thus, we agree with counsel
that this appeal is wholly frivolous. Accordingly, we grant counsel’s
Petition to Withdraw as Counsel and affirm Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed. Counsel’s Petition to Withdraw as
Counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
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