Com. v. Perez, G.

J-S28004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GILBERTO PEREZ :
:
Appellant : No. 1602 MDA 2021
Appeal from the Judgment of Sentence Entered December 6, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0000643-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: OCTOBER 24, 2022
Appellant, Gilberto Perez, appeals from the judgment of sentence
entered on December 6, 2021 following his jury trial convictions for
aggravated assault with a deadly weapon and simple assault.1 On this direct
appeal, Appellant’s counsel has filed both a petition for leave to withdraw and
an accompanying brief pursuant to Anders v. California, 386 U.S. 738(1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
conclude that Appellant's counsel has complied with the procedural
requirements necessary to withdraw. Moreover, after independently
reviewing the record, we conclude that the instant appeal is wholly frivolous.
Therefore, we grant counsel's petition for leave to withdraw and affirm
Appellant's judgment of sentence.
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1 18 Pa.C.S.A. §§ 2702(A)(4) and 2701, respectively.
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We briefly summarize the facts and procedural history of this case as
follows. On April 11, 2021, Appellant and Luis Hernandez were involved in an
altercation outside the One Stop convenience store in Schuylkill County,
Pennsylvania. N.T., 10/25/2021, at 18-20. At trial, Hernandez testified that
the two men got into a verbal argument and Appellant cut Hernandez’s finger
with a box cutter. Id. at 20-21. Appellant also bit Hernandez on the inner
part of his arm, drawing blood. Id. at 26-29. Hernandez returned home
where his wife was cleaning his wounds when Appellant came to the residence
and knocked on the door. Id. at 24-25. Appellant brandished a kitchen knife
and demanded the return of a cellular telephone. Id. at 25. Hernandez went
outside holding a pocketknife. Id. at 41-42. Hernandez testified that he put
his knife on the ground, hoping Appellant “would do the same[,]” but Appellant
grabbed the pocketknife and wielded both knives against Hernandez. Id. at
42-43. Hernandez grabbed a shovel to protect himself, but did not strike
Appellant with it. Id. at 43. Officer Cody Applegate with the Shenadoah
Borough Police Department arrived on the scene. Id. at 44-45. Officer
Applegate testified that the police “were called for a fight involving weapons”
and when he arrived, he observed Appellant “holding two knives” and
Hernandez “had a shovel.” Id. at 46. The police detained both men. Id.
Hernandez had a “stab wound on … his left hand, his ring finger” that “was
severely bleeding.” Id. at 47. The wound “just kept bleeding” despite having
been cleaned and there was “blood all over the shovel that [Hernandez] was
holding and there was some blood on the ground as well.” Id. at 47-48.
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Officer Applegate observed a bleeding bite mark on one of Hernandez’s arms.
Id. at 49. The police called for an ambulance to take Hernandez to the
hospital. Id. Hernandez received six stitches to his finger, and, at trial, he
showed the scar to the jury. Id. at 27-28. Hernandez testified that he had
difficulty using his injured hand for a month following the incident. Id. at 28.
At the conclusion of trial on October 25, 2021, the jury convicted
Appellant of the aforementioned crimes.2 The trial court ordered the
preparation of a presentence investigation report prior to sentencing. N.T.,
12/6/2021, at 2-3. On December 6, 2021, the trial court sentenced Appellant
to 30 to 120 months for aggravated assault with a deadly weapon. Id. at 11.
The simple assault conviction merged for sentencing purposes. Id. This
timely appeal resulted.3
Before reviewing the merits of the appeal, this Court must first
determine whether appointed counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998). To withdraw under Anders,
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2 The jury also determined that Appellant was not guilty of aggravated assault
pursuant to 18 Pa.C.S.A. § 2702(A)(1) (attempts to cause serious bodily injury
or causes injury with extreme indifference).
3 Appellant filed a notice of appeal on December 8, 2021. On December 20,
2021, the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 14, 2022,
counsel for Appellant filed a concise statement indicating that he intended to
file an appellate brief pursuant to Anders. As such, the trial court entered an
order on March 7, 2022, indicating that it would not file an opinion pursuant
to Pa.R.A.P. 1925(a)(1).
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court-appointed counsel must satisfy certain technical requirements. First,
counsel must “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.” Miller, 715 A.2d at 1207. Second,
counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel's conclusion that the appeal is frivolous; and (4) state[s]
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; see also Commonwealth v. Smith, 700 A.2d
1301, 1304 (Pa. Super. 1997) (“[C]ounsel seeking to withdraw under Anders
is required to flag any issues that the defendant wishes to raise, as well as
any other claims necessary to the effective appellate presentation of those
issues.”). Finally, counsel must furnish a copy of the Anders brief to his or
her client and advise the client “of [the client's] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court's attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
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banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. ... [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze those issues
of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
Here, counsel complied with all of the aforementioned procedural
obligations. Counsel filed an Anders’ brief and application to withdraw with
this Court on June 22, 2022. Attached to the Anders’ brief was a letter
advising Appellant of his rights. Appellant has not responded to the petition
to withdraw or the Anders’ brief. We must, therefore, review the entire
record and analyze whether this appeal is, in fact, wholly frivolous. In his
Anders’ brief, counsel flags the following issue Appellant wishes to raise:
1. Was the evidence presented at trial sufficient to sustain a
conviction?
Anders’ Brief at 4.
“[W]ith respect to [appellate] sufficiency review, our standard of review
is de novo, however, our scope of review is limited to considering the evidence
of record, and all reasonable inferences arising therefrom, viewed in the light
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most favorable to the Commonwealth as the verdict winner.”
Commonwealth v. Rushing, 99 A.3d 416, 420–421 (Pa. 2014) (citation
omitted). We examine whether “the evidence at trial and all reasonable
inferences therefrom are sufficient for the trier of fact to find that each
element of the crimes charged is established beyond a reasonable doubt.”
Commonwealth v. Cannavo, 199 A.3d 1282, 1290 (Pa. Super. 2018)
(citation omitted). Furthermore:
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt
raised as to the accused's guilt is to be resolved by the fact-finder.
We will not disturb the verdict 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.
Id. (internal citations, quotations, and brackets omitted).
Appellant was convicted of aggravated assault with a deadly weapon.
“A person is guilty of aggravated assault if he … attempts to cause or
intentionally causes bodily injury to another with a deadly weapon.” 18
Pa.C.S.A. § 2702(a)(4). A person acts intentionally in causing bodily injury to
another with a deadly weapon if it is his conscious objective to engage in
conduct which causes such a result. See 18 Pa.C.S.A. § 302(b)(1)(i). “Bodily
injury” is defined as an “impairment of physical condition or substantial pain.”
18 Pa.C.S.A. § 2301. We have previously determined that a box cutter is a
deadly weapon. See Commonwealth v. Rhoads, 273 A.3d 1031 (Pa. Super.
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2022) (unpublished memorandum).4 In this case, there is no dispute that
Appellant sliced the victim’s finger with a box cutter and that the injury caused
severe bleeding which required six stitches at the hospital. Moreover, from
our independent review of the certified record, there was ample and sufficient
evidence upon which the jury could conclude that Appellant’s actions were
intentional rather than accidental. The Commonwealth presented evidence
that Appellant swung the box cutter “close to [the victim’s] face” but the victim
defensively put his hand up and sustained injury to his finger as a result. N.T.,
10/25/2021, at 22.
Appellant was also convicted of simple assault. “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.A. § 2701(a)(1). This
Court has previously determined:
The Commonwealth need not establish the victim actually suffered
bodily injury; rather, it is sufficient to support a conviction if the
Commonwealth establishes an attempt to inflict bodily injury. This
intent may be shown by circumstances, which reasonably suggest
that a defendant intended to cause injury.
* * *
[I]njuries that are “trivial in nature,” “noncriminal contact
resulting from family stress and rivalries,” or a “customary part of
modern[-]day living” do not satisfy [the bodily injury statutory]
element. The existence of substantial pain may be inferred from
the circumstances surrounding the use of physical force even in
the absence of a significant injury. We have held that an individual
who aggressively grabs the arm of another and pushes her against
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4 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019 may be cited for their persuasive value).
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wall causes bodily injury, even though the victim did not require
medical attention or miss work as a result and only sustained
bruises that lasted a few days. We have likewise held that a punch
to the face that broke the victim's glasses and caused pain for
several days caused a bodily injury. Similarly, we have found that
a deliberate punch with a closed fist resulting in slight swelling
and pain was a bodily injury.
Commonwealth v. Wroten, 257 A.3d 734, 743–744 (Pa. Super. 2021)
(internal citations, original brackets, and most quotations omitted).
Here, we conclude that the Commonwealth presented sufficient
evidence to support Appellant’s simple assault conviction. As set forth above,
the evidence showed that Appellant intentionally bit the victim’s arm during a
physical struggle. The investigating officer confirmed that the victim’s injury
was visible and bleeding. Hence, the jury was free to determine that the injury
was not: trivial in nature, noncriminal contact from a rivalry, or a customary
part of modern-day living. Accordingly, we conclude that the Commonwealth
presented sufficient evidence to support both of Appellant’s convictions.
Finally, after independent review of the certified record, we discern no
additional, non-frivolous issues overlooked by counsel. See Commonwealth
v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017) (“After determining that
counsel has satisfied the[] technical requirements of Anders and 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.”)
(citation and internal quotations omitted). Hence, we affirm Appellant's
judgment of sentence and grant counsel's petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2022
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