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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBBY LEE SHUKER
Appellant No. 290 MDA 2014
Appeal from the Judgment of Sentence January 3, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0006047-2012
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 12, 2014
2014 judgment of sentence entered in the Berks County Court of Common
Pleas following his conviction for aggravated assault1 and simple assault.2
Anders3 brief, together with a petition to
withdraw as counsel. We affirm the judgment of sentence and grant
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a)(1).
2
18 Pa.C.S. § 2701(a)(1).
3
Anders v. California, 386 U.S. 738 (1967).
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We summarize the facts and procedural history of this case as follows.
involved in a romantic relationship during which they had two children
together. The relationship had ended as of October 6, 2012, and Blair had a
new boyfriend. However, Appellant and Blair remained friends.
11:00 p.m. or 12:00 a.m. with the aid of prescription sleeping pills. Because
she was not feeling well, Blair took three of her sleeping pills, although her
prescribed dosage was only one pill.
At 2:30 a.m., Blair and Kehr were sleeping together in the master
bedroom when they were awakened by Appellant who had keys to the
house rattling the bedroom doorknob. Appellant began to yell, demanding
that Blair open the door. Blair told Appellant she was not going to answer
the door, and that he needed to leave.
Instead of leaving, Appellant kicked in the door and entered the
bedroom, yelling and cursing. Appellant pushed Blair onto the bed and
fought for a period of time. Once they separated, Appellant walked towards
the living room while Kehr exited toward the kitchen with his cell phone and
called 911.
Appellant followed and began choking Blair in the upstairs bedroom. Luckily,
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t off Blair and
escorted him down the steps to the lower level. Later, the Pennsylvania
State Police arrived and arrested Appellant.
The Commonwealth charged Appellant with burglary, terroristic
threats, simple assault (two counts), criminal mischief, aggravated assault,
and criminal trespass. Following a jury trial conducted on November 13,
2013, Appellant was convicted of simple assault (2 counts) and aggravated
assault.4 On January 3, 2014, the trial court sentenced Appellant to five (5)
to twenty (20) years of imprisonment on the aggravated assault conviction
and a concurrent sentence of one (1) to two (2) years of imprisonment for
the simple assault convictions. Appellant filed a post-sentence motion for a
new trial based upon a weight of the evidence claim, which the trial court
Anders
brief. The trial court filed its Pa.R.A.P. 1925(a) opinion on March 25, 2014,
which indicated the court had reviewed the record and concurred that no
meritorious issues existed for direct appeal.
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4
The trial court entered a judgment of acquittal at the close of the
The jury found Appellant not guilty of the charge of terroristic threats. The
trial court found Appellant guilty of criminal mischief, a summary offense.
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seeking to withdraw from representation pursuant to Anders v. California
and its Pennsylvania counterpart, Commonwealth v. Santiago.5 Before
Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa.Super.2007) (en banc).
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
eal 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 must also provide a copy of the
Anders brief to the appellant, together with a letter that advises the
(2) proceed pro se on appeal; or (3) raise any points that the appellant
tion in addition to the points raised by
Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super.2007). Substantial compliance with these requirements is
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5
978 A.2d 349 (Pa.2009).
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sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super.2007).
been met, this Court must then make an independent evaluation of the
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).
Instantly, counsel filed a Petition to Withdraw as Counsel. The petition
states counsel drafted and filed an Anders brief after determining that there
were no non-frivolous issues to be raised on appeal. The petition further
explains that counsel notified Appellant of the withdrawal request, supplied
him with a copy of the Anders brief, and sent Appellant a letter explaining
his right to proceed pro se or with new, privately-retained counsel to raise
any additional points or arguments that Appellant believed had merit. See
Letter to Appellant, May 9, 2014, attached to Petition to Withdraw as
Counsel. In the Anders brief, counsel provides a summary of the facts and
procedural history of the case with citations to the record, refers to evidence
of record that might arguably support the issue raised on appeal, provides
citations to relevant case law, and states his conclusion that the appeal is
wholly frivolous and his reasons therefor. Accordingly, counsel has
substantially complied with the requirements of Anders and Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the issue of
arguable merit raised in the Anders brief:
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1. Whether the guilty verdict for aggravated assault was
contrary to the weight of the evidence, where the inconsistent
and unreliable testimony of Stacey Blair was the only direct
evidence linking [Appellant] to the crimes, where she was under
the influence of a controlled substance in that she ingested more
than the prescribed dose of prescription sleeping pills due to a
head cold and was dazed and confused about the events of
October 6, 2012, and no additional eyewitness testimony or
n] the
crime charged.
Anders Brief, p. 7.
Our review of this issue is governed by the following standard:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal
citations, quotations, and footnote omitted).
Stated differently, a court may award a new trial because the verdict is
against the weight of the evidence only when the verdict is so contrary to
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given another opportunit Commonwealth v. Goodwine, 692
A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight
review of the underlying question of whether the verdict is against the
weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the
Id.
Here, the Commonwealth presented the testimony of Stacey Blair,
Richard Kehr, and the responding Pennsylvania State Police trooper at trial.
Blair and Kehr both gave first-hand testimony to the events as described
supra. The State trooper testified that he observed injuries consistent with
the claims that Appellant had assaulted both Blair and Kehr. The trooper
also testified that Appellant exhibited numerous signs of intoxication, and
because he had blacked out. The jury credited the testimony of the
See Commonwealth v. Ratsamy, 934 A.2d
which the fact- id not present
Based on the foregoing, we discern no abuse of discretion or trial court
the weight of the evidence. Nothing about the verdict is contrary to the
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in this matter. The jury understood Blair had taken more sleeping
medication than her prescription called for, and yet still credited her
testimony. Appellant now asks this Court to reassess the credibility of this
witness. This we cannot do. See Ratsamy, supra. Thus, we agree that
his conviction was against
the weight of the evidence fails. Further, our independent review of the
record has revealed no non-frivolous claims that Appellant could have raised,
and we agree with counsel that this appeal is wholly frivolous. Accordingly,
we affirm the judgment of sentence.
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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