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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
FRANK D. McGINNIS, : No. 1511 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, April 10, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0007327-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 18, 2015
Frank D. McGinnis appeals from the judgment of sentence of April 10,
2013, following his conviction of aggravated assault. Appointed counsel,
Christy P. Foreman, Esq., has filed a petition to withdraw and accompanying
Anders1 brief. After careful review, we grant counsel’s withdrawal petition
and affirm the judgment of sentence.
Appellant was charged with aggravated assault and attempted murder
in connection with the May 2, 2011 beating of his ex-girlfriend,
Madora Albert (“the victim”). Appellant struck the victim multiple times with
a furnace pipe, breaking her jaw. Following a jury trial held January 14-15,
2013, appellant was found guilty of one count of aggravated assault.
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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Appellant was found not guilty of criminal attempt -- homicide. On April 10,
2013, appellant was sentenced to 9 to 20 years’ incarceration. Trial counsel
was permitted to withdraw, and present counsel was appointed to represent
appellant on direct appeal. Post-sentence motions were denied, and this
timely appeal followed. Appellant has complied with Pa.R.A.P.,
Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed a Rule 1925(a)
opinion.
Appellant has raised the following issues for this court’s review:
1. Whether the evidence presented in this matter
was legally insufficient to sustain a conviction
of aggravated assault?
2. Whether the verdict in this matter was against
the weight of the evidence?
3. Whether the sentence imposed was excessive?
Appellant’s brief at 7.
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
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), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
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(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.
Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney Foreman has complied with all of
the above requirements. In addition, Attorney Foreman served appellant a
copy of the Anders brief, and advised him of his right to proceed pro se or
hire a private attorney to raise any additional points he deemed worthy of
this court’s review. Appellant did file a pro se response to counsel’s petition
to withdraw on February 4, 2015. The issues raised therein will be
addressed at the end of this memorandum. As we find the requirements of
Anders and Santiago are met, we will proceed to the issues on appeal.
Our standard of review for a challenge to the
sufficiency of the evidence is well settled. We must
view all the evidence in the light most favorable to
the verdict winner, giving that party the benefit of all
reasonable inferences to be drawn therefrom.
Additionally, it is not the role of an appellate court to
weigh the evidence or to substitute our judgment for
that of the fact-finder.
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Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),
appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.
Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143
(Pa. 2004) (citations omitted).
Aggravated assault is defined at 18 Pa.C.S.A. § 2702, which provides
in relevant part:
(a) Offense defined.--A person is guilty of
aggravated assault if he:
(1) 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.A. § 2702(a)(1). “Serious bodily injury” is defined as “Bodily
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.” 18 Pa.C.S.A. § 2301. Instantly, appellant
was convicted of a single count of aggravated assault as a first-degree
felony under Subsection (a)(1).
The victim testified that in April 2011, she broke up with appellant but
they still lived together at 1117 Bessica Street in Wilkinsburg. (Notes of
testimony, 1/14-15/13 at 26-28.) The home was owned by her aunt. (Id.
at 40.) The victim was allowing him to live there until he found a new place.
(Id. at 28.) On May 2, 2011, the victim was sitting on the porch talking on
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the phone with her friend, Trinette Wilson (“Trinette”). (Id. at 27.)
Appellant came home from work and appeared to be angry. (Id. at 29, 41-
42.) Appellant complained that the victim had not cooked him anything to
eat. (Id. at 29, 42.) Appellant went inside the house, returned to the porch
and stated, “you have been here all day and you ain’t cooked nothing?” (Id.
at 29.) The victim replied that she had not been there all day and continued
talking on the phone. (Id. at 29, 42-43.)
At that point, appellant picked up a pipe from the end of the porch and
began striking the victim with it. (Id. at 29.) The victim testified that
appellant struck her in the head and threatened to kill her:
He started beating me in my head, constantly talking
about I will kill you, I’ll kill you, I’ll kill you. The one
last final blow I fell to the, like to the end of my
porch. Like my porch has one step before you are
on the main porch. I fell flat like this with my face
turned this way. Even while I was down he
continued to beat me in my back, I’ll kill you,
I’m [sic] kill you, I told you that I will kill you. Right
now I’m like so just out of it. I turned and while I’m
down I closed my eyes, I’m going to die. He was
really trying to kill me. I was totally shocked. I
can’t believe that he would do something like that to
me.
Id. at 30.
Eventually, appellant stopped hitting the victim and threw the pipe into
an empty lot next to the house. (Id. at 32.) The victim testified that she
suffered a broken jaw and continues to have problems related to the
incident, including migraine headaches and fibromyalgia. (Id. at 37-38.)
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The victim testified that she is still taking medication and going to therapy.
(Id. at 37.) She is unable to walk far or hold her grandchildren. (Id.) The
victim described her ongoing chronic injuries as “a nightmare.” (Id. at 38.)
The victim’s account of the incident was corroborated by Trinette and
her daughter, Nikki Albert (“Nikki”). Trinette testified that she was on the
phone with the victim when she heard appellant come home. (Id. at 56.)
She overheard appellant complain that the victim was home all day and had
not cooked him anything. (Id. at 56-57.) The victim answered that she had
not been home all day, she had just gotten home. (Id. at 57.) Trinette
then heard the victim say, “you are going to do what,” and the phone went
dead. (Id.) Trinette testified that the victim did not call her back and she
“got bad vibes,” so she called the victim’s daughter and asked her to check
on the victim. (Id.)
Nikki testified that she lives only about two blocks from her mother,
the victim. (Id. at 59.) After speaking with Trinette, Nikki proceeded to the
victim’s house where she saw appellant throw something into the grass next
to the house. (Id. at 60.) Nikki testified that the victim appeared to be
upset, and was stumbling. (Id. at 64.) The victim hid behind Nikki and
stated that appellant had hit her with a pipe. (Id. at 60-61, 64.) Appellant
claimed that the victim had fallen. (Id. at 61, 65.) Nikki called the police.
(Id.)
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Officer Ronald Waz of the Borough of Wilkinsburg Police testified that
when he arrived on the scene, appellant was intoxicated. (Id. at 69.)
Appellant claimed that he had accidentally tripped the victim and she had
fallen down the steps and hit her head. (Id.) Officer Waz observed blood
on the porch and front steps. (Id. at 75.) After speaking with Nikki,
Officer Mark Wilson recovered a pipe from a grassy area adjacent to the
victim’s residence. (Id. at 77.) Officer Wilson testified that the pipe did not
appear to have been lying there for any length of time. (Id. at 77-78.) The
pipe was described as a heavy copper pipe. (Id. at 71.)
Michael Lynch, M.D., an emergency physician, testified that he treated
the victim at UPMC Presbyterian on May 2, 2011, the date of the incident.
(Id. at 88.) The victim had significant swelling on the right side of her face
and complained of facial pain. (Id.) The victim related that she had lost
consciousness and complained of pain in her neck and back. (Id.) The
victim stated that she had been struck with a pipe. (Id.) A CT scan
revealed a fracture of the victim’s jaw on the right side. (Id. at 89.)
Dr. Lynch testified that the victim’s injuries were not consistent with falling
down stairs. (Id. at 91.)
Clearly, this evidence was sufficient for the jury to find that appellant
intentionally caused the victim serious bodily injury. Appellant struck the
victim repeatedly with a heavy metal pipe. The victim testified that during
the beating, appellant threatened to kill her. The victim sustained serious
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injuries including a broken jaw. The victim testified that she continues to
experience pain and physical limitations as a result of the beating.
Appellant’s sufficiency argument is without merit.
We now turn to appellant’s weight of the evidence claim.2
A weight of the evidence claim concedes
that the evidence is sufficient to sustain
the verdict, but seeks a new trial on the
ground that the evidence was so
one-sided or so weighted in favor of
acquittal that a guilty verdict shocks
one’s sense of justice.
Commonwealth v. Lyons, Pa. , 79 A.3d
1053, 1067 (2013).
The Pennsylvania Supreme Court has
reiterated the proper standard of review of a weight
claim as follows:
A motion for a new trial based on a claim
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. 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.’” It has often been
stated that “a new trial should be
awarded when the jury’s verdict is so
contrary to the evidence as to shock
one’s sense of justice and the award of a
2
This claim was preserved in appellant’s amended post-sentence motion.
(Docket #44.) Pa.R.Crim.P. 607.
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new trial is imperative so that right may
be given another opportunity to prevail.”
An appellate court’s standard of review
when presented with a weight of the
evidence claim is distinct from the
standard of review applied by the trial
court:
Appellate review of a weight
claim is a review of the
exercise of discretion, not of
the underlying question of
whether the verdict is against
the weight of the evidence.
Because the trial judge has
had the opportunity to hear
and see the evidence
presented, an appellate court
will give the gravest
consideration to the findings
and reasons advanced by the
trial judge when reviewing a
trial court’s determination
that the verdict is against the
weight of the evidence. One
of the least assailable
reasons for granting or
denying a new trial is the
lower court’s conviction that
the verdict was or was not
against the weight of the
evidence and that a new trial
should be granted in the
interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or
denying a motion for a new trial based
on a challenge to the weight of the
evidence is unfettered. In describing the
limits of a trial court’s discretion, we
have explained:
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The term “discretion” imports
the exercise of judgment,
wisdom and skill so as to
reach a dispassionate
conclusion within the
framework of the law, and is
not exercised for the purpose
of giving effect to the will of
the judge. Discretion must
be exercised on the
foundation of reason, as
opposed to prejudice,
personal motivations, caprice
or arbitrary actions.
Discretion is abused where
the course pursued
represents not merely an
error of judgment, but where
the judgment is manifestly
unreasonable or where the
law is not applied or where
the record shows that the
action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, Pa. , 64 A.3d
1049, 1054-1055 (2013) (citations omitted)
(emphasis in original).
Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014).
At trial, appellant argued that the victim’s account of the incident was
not credible. Although the victim suffered a fractured jaw, appellant claimed
that if she had been beaten with the heavy copper pipe, she would have
sustained far more serious injuries. (Notes of testimony, 1/14-15/13 at
114-115.) Appellant also argued that the medical evidence did not
corroborate the victim’s claims of spinal injuries and concussions. (Id. at
116-117.) According to appellant, the victim’s testimony that she was
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savagely beaten was not supported by the physical evidence. (Id. at 117.)
Appellant also pointed out that there was no DNA, blood, or fingerprints
recovered from the pipe. (Id.)
While appellant chose to downplay the seriousness of the victim’s
injuries, it was not disputed that she suffered a fractured jaw, an injury that
Dr. Lynch characterized as consistent with being struck in the face with a
pipe. (Id. at 91, 97.) Appellant argued to the jury that there was no blood;
however, that was factually incorrect. (Id. at 116.) Officer Waz testified
that he observed blood at the scene, on the porch and front steps. (Id. at
75.) In addition, the victim’s testimony was corroborated by Trinette and
Nikki. Nikki testified that shortly after the incident, the victim appeared to
be upset and had difficulty walking. (Id. at 64.) The victim stated that
appellant had hit her with a pipe. (Id. at 60.) As she was approaching the
victim’s residence, Nikki saw appellant toss something into the bushes.
(Id.) The pipe, which the victim identified as the weapon used by appellant,
was recovered by Officer Wilson who testified it did not appear to have been
there very long. (Id. at 38, 77-78.) Regarding the lack of forensic evidence
such as fingerprints, it was explained that a lack of latent fingerprints does
not mean that the object was not touched. (Id. at 104-105.)
Any minor inconsistences or discrepancies in the evidence were for the
jury to resolve. The jury is free to believe all, part, or none of the evidence.
Obviously, the jury found the victim’s testimony to be credible. The jury
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was free to reject appellant’s argument that the victim would necessarily
have sustained far more serious and obvious injuries from being beaten with
a heavy metal pipe. The victim testified that she continues to experience
chronic pain and physical limitations as a result of the attack. Certainly the
jury’s verdict does not shock the judicial conscience. The trial court did not
abuse its discretion in denying appellant’s weight of the evidence claim.
Next, appellant challenges the discretionary aspects of his sentence.
An appellant’s right to challenge the discretionary aspects of his sentence is
not absolute. Commonwealth v. Barzyk, 692 A.2d 211, 216 (Pa.Super.
1997). Rather, a party who desires to raise such matters must petition this
court for permission to appeal and demonstrate that there is a substantial
question that the sentence is inappropriate. 42 Pa.C.S.A. § 9781(b);
Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987). The
determination of whether a particular issue constitutes a substantial
question as to the appropriateness of sentence must be evaluated on a
case-by-case basis. Barzyk, 692 A.2d at 216. In fulfilling this requirement,
the party seeking to appeal must include in his or her brief a concise
statement of reasons relied upon in support of allowance of appeal.
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Pa.R.A.P. 2119(f),3 Commonwealth v. Saranchak, 675 A.2d 268, 277 (Pa.
1996), cert. denied, 519 U.S. 1061 (1997).
Instantly, appellant has failed to set forth in his brief a concise
statement of reasons relied upon for allowance of appeal. The
Commonwealth has specifically objected to this omission. (Commonwealth’s
brief at 17-18). Therefore, the defect is fatal and this court is precluded
from addressing the merits of appellant’s challenge. Commonwealth v.
Davis, 734 A.2d 879, 882 n.4 (Pa.Super. 1999).4
Finally, we turn to appellant’s issues raised in his pro se response to
Attorney Foreman’s withdrawal petition. Appellant argues that
Attorney Foreman was ineffective for filing a petition to withdraw and
Anders brief. Appellant claims that by doing so, Attorney Foreman has
essentially abandoned him and failed to act in his best interests. Appellant
3
Pa.R.A.P. 2119(f) states:
(f) Discretionary aspects of sentence. An
appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall
set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a
sentence. The statement shall immediately
precede the argument on the merits with
respect to the discretionary aspects of
sentence.
4
We note that with the deadly weapon enhancement and his prior record
score of 5, appellant’s sentence of 9 to 20 years’ incarceration fell within the
standard range of the sentencing guidelines.
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also states that in an Anders brief, counsel is required to set out the issues
in neutral form and not argue against her own client.
Appellant simply misconstrues current Anders practice. Pursuant to
Santiago, supra, counsel petitioning to withdraw on direct appeal must
explain why the issues his/her client wishes to pursue on appeal are
meritless. In addition, if an attorney is of the opinion that there are no
meritorious issues to be raised on appeal and the appeal is wholly frivolous,
he or she is obligated to file a petition to withdraw and Anders brief.
Attorney Foreman was not ineffective in this regard, as appellant alleges.
Appellant claims he requested trial counsel obtain a transcript or
recording of the 911 call. However, appellant does not explain how the
911 call placed by Nikki after she arrived at the victim’s house could possibly
exonerate him. In addition, any claims of trial counsel ineffectiveness would
have to wait until collateral review. See Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002) (defendants should wait until the collateral review
phase to raise claims of ineffective assistance of counsel). Nor do either of
the exceptions to the Grant rule outlined in Commonwealth v. Holmes,
79 A.3d 562 (Pa. 2013), apply here.
Appellant also argues that the victim and other Commonwealth
witnesses gave false testimony. According to appellant, there is no evidence
that the victim’s jaw was broken. Appellant contends that at most, his
actions constituted a simple assault.
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Contrary to appellant’s argument, there was uncontradicted medical
evidence that the victim’s jaw was, in fact, broken. Appellant fails to
articulate what other testimony was allegedly false or perjured. To the
extent appellant levels claims of trial counsel ineffectiveness, again, they are
not cognizable on the instant direct appeal and would have to be raised in a
timely post-conviction petition.
Having determined that the instant appeal is wholly frivolous, and
after our own independent review, that there are no issues of arguable merit
apparent from the record, we will grant Attorney Foreman’s petition to
withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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