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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEREMIAH DANIEL WHITE,
Appellant No. 662 MDA 2014
Appeal from the Judgment of Sentence of January 29, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003627-2013
BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 27, 2015
Appellant, Jeremiah Daniel White, appeals from the judgment of
sentence entered on January 29, 2014, as made final by the denial of
Appellant’s post-sentence motion on March 18, 2014. On this direct appeal,
Appellant’s court-appointed counsel has filed both a petition to withdraw as
counsel and an accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).1 We conclude that Appellant’s counsel has complied with the
procedural requirements necessary to affect withdrawal. Moreover, after
independently reviewing the record, we conclude that the instant appeal is
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1
See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
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wholly frivolous. We, therefore, grant counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
On May 6, 2013, Appellant was arrested and charged with “driving
under the influence – general impairment” (hereinafter “DUI” or “DUI –
General Impairment”), “resisting arrest or other law enforcement,” and
“failure to stop at a steady red signal.”2 On December 11, 2013, Appellant
proceeded to a bifurcated trial on the charges, with the jury sitting as the
fact-finder on the resisting arrest or other law enforcement charge and the
trial court sitting as the fact-finder on the DUI and failure to stop at a steady
red signal charges.
During Appellant’s trial, Pennsylvania State Police Corporal Alan Tres
testified on behalf of the Commonwealth. As Corporal Tres testified, in the
early-morning hours of May 6, 2013, he was on-duty, in full uniform, and
driving an unmarked patrol car in the City of York, with Pennsylvania State
Trooper Jonathan Burnham. N.T. Trial, 12/11/13, at 36-37. Corporal Tres
testified that, at approximately 1:00 a.m., he was driving east on Mount
Rose Avenue and was approaching the intersection at South Albermarle
Street, when he noticed a silver Lincoln Navigator make an illegal left-hand
turn on a steady red stoplight. Id. at 38. Corporal Tres testified that he
followed the vehicle, activated his emergency lights, and conducted a traffic
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2
75 Pa.C.S.A. § 3802(a)(1), 18 Pa.C.S.A. § 5104, and 75 Pa.C.S.A.
§ 3112(a)(3)(i), respectively.
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stop on the vehicle. Id. As is pertinent to the resisting arrest or other law
enforcement charge, Corporal Tres testified:
After we stopped the vehicle, I exited the driver side of the
patrol car and approached the driver side of the Navigator.
Trooper Burnham walked on the passenger side. As I
approached the vehicle, I noticed the driver window down
probably six or seven inches. As I approached, I noticed
that [Appellant] was the driver of the vehicle and the only
occupant.
As I approached the vehicle, I said, I told him who I was
and asked to see his documentation for the vehicle. Can I
see your license, registration, and insurance card[?] He
immediately seemed agitated and barked back at me,
[saying] why did you stop me? [I said, s]ir, let me see the
information. [He said,] I am requesting an explain to you,
why I am being stopped by you [sic]. [He said] I am not
showing you anything until you tell me why you stopped
me. I explained, we typically ask for that to identify the
person and make sure that they are legally allowed to be in
the vehicle. That’s part of our job is to identify who we are
dealing with. He basically wanted to argue why you
stopped me. Why did you stop me?
I think at one point, I think, I did say, you ran the red light.
He said, no, I didn’t.
As I spoke to him, I noticed other indicators that other
things [were] going on. I requested that he step from the
vehicle. He refused to get out of the vehicle. At that point I
tried to open the door and the door was locked. [I said,
s]ir, you get out of the vehicle. [He said] I am not getting
out of the car.
I started to reach through the window to unlock the door –
as I reached through the window, he then began to roll the
window up. At that point I had to pull[] my arm back out of
the window. He pulled the window completely up. I then
explained to him that if he didn’t get out of the car, I was
going to break the window and he was going to be removed
from the car. He still refused to get out of the car.
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I warned him, again. I said, I am going to give you one
more warning after this. If you don’t get out of the car, I
am going to break the window. He still refused to get out of
the car. He said, I am not getting out.
I said, I am going to count to three. At the count of three, I
am going to break your window. As this was going on,
Trooper Burnham heard what was happening and he came
around and was actually standing next to me at this point. .
. . [Appellant] said, break it. Then I said, one, two, three
and at the count of three I used my ASP baton to break the
window.
After the window was broken, I reached in and opened the
door and began to try [to] pull [Appellant] out of the
vehicle. He began to resist. He wouldn’t get out of the
vehicle. He pinned himself inside the vehicle and it took
both Trooper Burnham and [me] to pull him out of the
vehicle.
Once we got him out of the vehicle, we kept ordering him to
the ground. He continued to refuse and continued to resist.
At that point it took both of us pulling on him to get him to
the ground and try to gain control of him.
Once we got him to the ground, we continued to order him
to put his hands behind his back and stop resisting. He
refused to do that. He was warned if you don’t put your
hands behind your back, you are going to be [Tased]. He
still continued to resist putting his hands behind his back.
At that point, Trooper Burnham did what we call a dry stun.
He removed the [cartridge so that it would not] shoot the
projectiles. It gives a shock like a stun gun type thing. At
that point Trooper Burnham activated his [Taser] on the
back of [Appellant’s] neck. [From] that point on[,
Appellant] was compliant.
Id. at 39-43 (some internal paragraphing omitted).
Further, Corporal Tres testified that Appellant’s actions required the
corporal: to stand on the road in the lane of travel; to “take[ Appellant] to
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the ground in the lane of travel;” and, to subdue Appellant in the lane of
travel. Id. at 44.
With respect to the DUI charge, Corporal Tres testified that, as soon as
he began speaking with Appellant, the corporal was able to “detect the odor
of alcoholic beverage emitting from inside the vehicle, [and the corporal was
able to discern that Appellant’s] speech was slurred, and [that Appellant
had] glassy,” “bloodshot” eyes. Id. at 60 and 83. Corporal Tres also
noticed that an empty Patron tequila bottle was lying “[i]n the middle of the
seat directly behind where [Appellant] was sitting” and within Appellant’s
arm’s reach. Id. at 83. Further, as Corporal Tres testified, Appellant
admitted “several times” to having drunken alcohol prior to the vehicle stop,
but Appellant protested that doing so “was not a crime.” Id. at 84.
As Corporal Tres testified, after he was finally able to detain Appellant,
Appellant still acted in a “belligerent, ranting, [and] argumentative” manner.
Id. Corporal Tres testified that, because of Appellant’s unruly behavior, the
corporal was unable to perform field sobriety tests on Appellant. Id. at 83-
84. Instead, the corporal testified, he drove Appellant to the hospital, with
the hope that Appellant would submit to a chemical test of his blood. Id.
Corporal Tres testified that, while they were sitting in the patrol car, in
front of the hospital, the corporal read Appellant the implied consent and
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O’Connell3 warnings and then requested that Appellant submit to chemical
testing of the blood, for the purpose of determining Appellant’s blood alcohol
content. Id. Corporal Tres testified that Appellant appeared to understand
the implied consent and O’Connell warnings; however, Appellant told
Corporal Tres that he did not understand the warnings and Appellant refused
to submit to chemical testing. Id. at 85-87. As a result of Appellant’s
refusal, Corporal Tres did not take Appellant into the hospital; instead, the
corporal drove Appellant to the Pennsylvania State Police barracks for
booking. Id. at 85-86.
Appellant testified in his own defense at trial and claimed that: he did
not make an illegal left-hand turn on a red light, but, rather, waited until the
light turned green before he turned; as soon as he pulled his vehicle over to
the side of the road, Corporal Tres “came right up to the car[ and] started
tugging on the door automatically before there was any license or
registration” request; Corporal Tres refused to tell him the reason for the
vehicle stop; while he was still attempting to communicate with Corporal
Tres, Corporal Tres simply broke his car window with a police baton and
pulled him from the car; and, when he was outside of the car, he attempted
to cooperate with the police commands, but the police “hurled [him] in the
air[,] slammed [him] on the ground,” and Tased him in the neck. Id. at 49-
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3
See Comm., Dep’t of Transp. v. O’Connell, 555 A.2d 873 (Pa. 1989).
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54. Further, Appellant testified that he did not drink alcohol on the night in
question and he did not recall that he ever refused Corporal Tres’ request to
submit to blood alcohol testing. Id. at 90-91.
At the conclusion of Appellant’s trial, the jury found Appellant guilty of
resisting arrest or other law enforcement and the trial court found Appellant
guilty of DUI and failure to stop at a steady red signal. On January 29,
2014, the trial court sentenced Appellant to serve a term of 72 hours to six
months in jail for the DUI conviction and to serve a concurrent term of 30
days to 18 months in jail for the resisting arrest or other law enforcement
conviction. N.T. Sentencing, 1/29/14, at 3.
Appellant filed a timely post-sentence motion, where Appellant claimed
that his verdicts were against the weight of the evidence. Appellant’s Post-
Sentence Motion, 2/7/14, at 1. The trial court denied this post-sentence
motion on March 18, 2014, after which Appellant filed a timely notice of
appeal.
On appeal, Appellant’s court-appointed counsel has filed a petition for
leave to withdraw and has accompanied this petition with an Anders brief.
Within the Anders brief, Appellant raises the following claims:4
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4
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). In accordance with Pa.R.A.P. 1925(c)(4), Appellant’s
court-appointed counsel filed a “statement of intent to file an
Anders/McClendon brief in lieu of filing a [Pa.R.A.P. 1925(b) s]tatement.”
Pa.R.A.P. 1925(c)(4).
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[1.] Whether there was sufficient evidence to convict
Appellant of DUI – General Impairment and resisting arrest?
[2.] Whether the verdicts were against the weight of the
evidence?
Appellant’s Brief at 5.
Before reviewing the merits of this appeal, this Court must first
determine whether 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, 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.
Finally, counsel must furnish a copy of the Anders brief to his client
and advise the client “of [the client’s] right to retain new counsel, proceed
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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, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel has met all of the above procedural
obligations. We must, therefore, review the entire record and analyze
whether this appeal is, in fact, wholly frivolous. Our analysis begins with the
issues raised in the Anders brief.
Appellant first claims that the evidence was insufficient to support his
convictions for DUI and resisting arrest or other law enforcement. We will
discuss Appellant’s sufficiency of the evidence claims in the order raised
above; however, the claims are frivolous.
We review Appellant’s sufficiency of the evidence claims under the
following standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
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and substitute our judgment for [that of] the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must
be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Brown, 23 A.3d 544, 559-560 (Pa. Super. 2011) (en
banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805-806
(Pa. Super. 2008).
Initially, Appellant claims that the evidence was insufficient to support
his DUI conviction. Here, Appellant was convicted of DUI – General
Impairment, pursuant to 75 Pa.C.S.A. § 3802(a)(1). This section provides:
An individual may not drive, operate or be in actual physical
control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in
actual physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(1).
As our Supreme Court has explained, “subsection 3802(a)(1) is an ‘at
the time of driving’ offense, requiring that the Commonwealth prove the
following elements: the accused was driving, operating, or in actual physical
control of the movement of a vehicle during the time when he or she was
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rendered incapable of safely doing so due to the consumption of alcohol.”
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). Amongst the
types of evidence that are relevant in determining whether an individual has
violated subsection 3802(a)(1) include the following: “the offender’s actions
and behavior, including manner of driving and ability to pass field sobriety
tests; demeanor, including toward the investigating officer; physical
appearance, particularly bloodshot eyes and other physical signs of
intoxication; odor of alcohol, and slurred speech. Blood alcohol level may be
added to this list, although it is not necessary.” Id.
Viewing the evidence in the light most favorable to the
Commonwealth, the evidence was clearly sufficient to support Appellant’s
DUI conviction. Certainly, the evidence demonstrates that: Appellant
committed a flagrant moving violation of the Pennsylvania Vehicle Code;
immediately upon speaking with Appellant, Corporal Tres was able to “detect
the odor of alcoholic beverage emitting from inside the vehicle, [and the
corporal was able to discern that Appellant’s] speech was slurred, and [that
Appellant had] glassy,” “bloodshot” eyes; there was an empty Patron tequila
bottle that was lying “[i]n the middle of the seat directly behind where
[Appellant] was sitting” and within Appellant’s arm’s reach; Appellant told
Corporal Tres that he had consumed alcohol on the night in question, but
contended that drinking “was not a crime;” Appellant was uncooperative
with the police throughout the entire encounter; Appellant would not exit the
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vehicle when he was (repeatedly) ordered to do so; Corporal Tres was
required to break Appellant’s window and drag Appellant out of the car; even
after he was detained, Appellant continued to act in a “belligerent, ranting,
[and] argumentative” manner; and, Appellant refused to submit to a
chemical test of his blood, even though Appellant understood the implied
consent and O’Connell warnings, thus demonstrating a consciousness of
guilt.
The above evidence is plainly sufficient to prove that Appellant drove a
vehicle “during the time when he [] was rendered incapable of safely doing
so due to the consumption of alcohol.” Segida, 985 A.2d at 879.
Appellant’s claim to the contrary is frivolous.
Next, Appellant claims that the evidence was insufficient to prove that
he committed the crime of resisting arrest or other law enforcement. Again,
the claim is frivolous.
Resisting arrest or other law enforcement is defined in the following
manner:
A person commits a misdemeanor of the second degree if,
with the intent of preventing a public servant from effecting
a lawful arrest or discharging any other duty, the person
creates a substantial risk of bodily injury to the public
servant or anyone else, or employs means justifying or
requiring substantial force to overcome the resistance.
18 Pa.C.S.A. § 5104.
As this Court has explained, “[t]he provisions of 18 Pa.C.S.A. § 5104
are clearly disjunctive.” Commonwealth v. Karl, 476 A.2d 908, 911 (Pa.
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Super. 1984). “To be convicted under the first provision of § 5104,” we
have held, “it is essential that there be a lawful arrest.” Id. However,
section 5104 also provides that an individual may be convicted of resisting
arrest or other law enforcement where the individual prevents a public
servant from “discharging any other duty.” Id. Noting that 18 Pa.C.S.A.
§ 5104 was modeled after Section 242.2 of the Model Penal Code, this Court
has quoted from the comments to Model Penal Code § 242.2 and has held
that the crime of resisting arrest or other law enforcement:
covers physical interference in a host of circumstances in
which public servants discharge legal duties other than
arrest. These include, for example, a policeman executing a
search warrant, a fireman putting out a blaze, a forest or
agricultural official making required inspections, an election
official charged with monitoring balloting, and the like.
Karl, 476 A.2d at 911 (emphasis omitted), quoting MPC § 242.2 cmt. 5.
In the case at bar, Corporal Tres effectuated a traffic stop of
Appellant’s vehicle after he witnessed Appellant commit a moving violation
of the Motor Vehicle Code. Thus, when Corporal Tres requested that
Appellant produce his license, registration, and insurance and when Corporal
Tres requested that Appellant step out of the vehicle, Corporal Tres
possessed probable cause to believe that Appellant had violated the Vehicle
Code – and Corporal Tres was clearly “discharging [his] duty” of issuing a
citation to Appellant. See 18 Pa.C.S.A. § 5104.
Here, the evidence demonstrates that Appellant refused to comply
with Corporal Tres’ repeated orders to produce a license, registration, and
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insurance and to step out of the vehicle, following the legal and valid traffic
stop. Further, the evidence demonstrates that Appellant’s active resistance
required the officers to use “substantial force to overcome.” Certainly, the
evidence demonstrates that: Appellant rolled his window up on Corporal
Tres’ outstretched arm; Appellant locked and shut his vehicle, thus requiring
that Corporal Tres use his baton to break Appellant’s car window; even after
the window was broken, Appellant refused to leave the vehicle and instead
“pinned” himself in his vehicle, thus requiring Corporal Tres and Trooper
Burnham to forcibly pull Appellant out of the vehicle; once outside the
vehicle, Appellant continued to resist Corporal Tres and Appellant would not
go the ground or put his arms behind his back, as he was ordered; and,
Appellant’s resistance required Trooper Burnham to “dry stun” Appellant in
the back of his neck with a Taser, to force compliance.
The above facts demonstrate that Appellant acted with the “intent of
preventing a public servant from . . . discharging [his] duty [of issuing a
motor vehicle citation and did so by] . . . employ[ing] means justifying or
requiring substantial force to overcome the resistance.” See 18 Pa.C.S.A.
§ 5104; see also Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa.
Super. 2007) (evidence was sufficient to support the defendant’s resisting
arrest conviction where the defendant “interlocked her arms and legs”
around her husband, thus requiring that the officer use “substantial force to
overcome the resistance”); Commonwealth v. McDonald, 17 A.3d 1282,
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1285-1286 (Pa. Super. 2011) (holding that there was sufficient evidence to
show that the police were required to use substantial force to arrest
[a]ppellant because: “[u]pon realizing he had been observed delivering
cocaine, [a]ppellant fled the scene on foot and led officers on a chase
through traffic for several blocks[; a]fter police caught up with [a]ppellant
when he slipped on wet grass, multiple officers were needed to hold
[a]ppellant down on the ground[; a]s [a]ppellant continued to try to get up,
officers were concerned that he had a weapon and struggled to force his
hands behind his back[; e]ven after officers threatened to taser [a]ppellant,
he still refused to submit to their authority[; a]ppellant ultimately complied
after police used a taser to effectuate the arrest”).
The evidence is thus sufficient to support Appellant’s conviction for
resisting arrest or other law enforcement. Appellant’s sufficiency of the
evidence claim is frivolous.5
On appeal, Appellant also claims that the verdicts were against the
weight of the evidence. Our Supreme Court has held:
a verdict is against the weight of the evidence only when
the jury’s verdict is so contrary to the evidence as to shock
one’s sense of justice. It is well established that a weight of
the evidence claim is addressed to the discretion of the trial
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5
Within the argument section of Appellant’s brief, Appellant also claims that
the evidence was insufficient to support his conviction for “failure to stop at
a steady red signal.” See Appellant’s Brief at 15-16. This claim is frivolous,
as Corporal Tres testified that he witnessed Appellant make an illegal left-
hand turn on a steady red signal. N.T. Trial, 12/11/13, at 38.
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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. Rather,
the role of the trial court is to determine that
notwithstanding all the evidence, 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. A motion for a
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.
Significantly, in a challenge to the weight of the evidence,
the function of an appellate court on appeal is to review the
trial court’s exercise of discretion based upon a review of
the record, rather than to consider de novo the underlying
question of the weight of the evidence. In determining
whether this standard has been met, appellate review is
limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts
and inferences of record disclose a palpable abuse of
discretion. It is for this reason that the trial court’s denial of
a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
quotations and citations omitted). “An abuse of discretion is not merely an
error of judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (internal
quotations and citations omitted).
Appellant has not provided this Court with a discrete argument as to
why the verdicts are against the weight of the evidence or as to how the trial
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court abused its discretion when it denied Appellant’s post-sentence weight
of the evidence claim. To the extent that Appellant bases his current claim
upon the contention that the respective fact-finders should have believed his
version of the events and should have disbelieved Corporal Tres’ version of
the events, the claim is frivolous. See, e.g., Commonwealth v. Karns, 50
A.3d 158, 165 (Pa. Super. 2012) (“the fact-finder is free to believe all, part,
or none of the evidence and to determine the credibility of the witnesses”)
(internal quotations, citations, and corrections omitted); Commonwealth v.
Kearns, 70 A.3d 881, 884 (Pa. Super. 2013) (“[w]here issues of credibility
and weight of the evidence are concerned, it is not the function of the
appellate court to substitute its judgment based on a cold record for that of
the trial court”).
We have independently considered the issues raised within Appellant’s
brief and have determined that they are frivolous. In addition, after an
independent review of the entire record, we see nothing that might arguably
support this appeal. The appeal is therefore wholly frivolous. Accordingly,
we affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw appearance.
Petition to withdraw appearance granted. Judgment of sentence
affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
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