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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRYAN EMERSHAW
Appellant No. 2086 MDA 2014
Appeal from the Judgment of Sentence October 2, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003952-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 20, 2015
Appellant, Bryan Emershaw, appeals from the judgment of sentence
entered October 2, 2014, in the Court of Common Pleas of Luzerne County.
Additionally, Emershaw’s court-appointed counsel, Caeli McCormick
Sweigart, Esquire, has filed an application to withdraw as counsel pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm
Emershaw’s judgment of sentence and grant counsel’s petition to withdraw.
During the afternoon on June 15, 2013, John Rogers (“the victim”)
engaged in target practice with a BB gun in the back yard of his residence.
During that time, Emershaw, who was the victim’s neighbor, confronted the
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*
Retired Senior Judge assigned to the Superior Court.
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victim regarding his use of a gun. The victim informed Emershaw that it was
only a BB gun, and the conversation ended. The victim then stored the BB
gun on a shelf in his shed and began to work on a neighbor’s malfunctioning
lawnmower and collect firewood. At this point, the victim observed
Emershaw crossing the lawn in his direction. Emershaw approached the
victim and kicked him. The victim remembers nothing of the attack after
that point.
Prior to the attack, the victim’s brother, Keith Rogers, was inside the
home he shares with the victim when Emershaw entered the house without
permission. Emershaw, who was acting belligerently, shouted that the victim
had threatened him with a BB gun and advised Rogers that the victim had
better clear the valley in ten days’ time. Fearing for his safety, Rogers locked
the doors and windows of the home after Emershaw had departed. Rogers
then observed the victim struggling to get off the ground in the rear yard.
The victim informed Rogers that Emershaw had assaulted him and was later
treated for multiple facial and rib fractures, a punctured lung, and a brain
hemorrhage. The victim, who had a .219 blood alcohol content level upon
his arrival at the hospital, additionally received treatment for alcohol abuse.
Emershaw was subsequently arrested and charged with multiple
offenses arising out of the assault. Following a jury trial, Emershaw was
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convicted of simple assault1 and recklessly endangering another person
(REAP),2 in addition to the summary offenses of criminal trespass3 and
harassment.4 The trial court later sentenced Emershaw to one year less one
day to two years less two days in prison. Emershaw thereafter filed a post-
sentence motion, which the trial court denied. This timely appeal followed.
As noted, Attorney Sweigart has requested to withdraw and has
submitted an Anders brief in support thereof contending that Emershaw’s
appeal is frivolous. The Pennsylvania Supreme Court has articulated the
procedure to be followed when court-appointed counsel seeks to withdraw
from representing an appellant on direct appeal:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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 arguably believes 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).
We note that Attorney Sweigart has substantially complied with all of
the requirements of Anders as articulated in Santiago. Additionally,
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1
18 Pa.C.S.A. § 2701(a)(1).
2
18 Pa.C.S.A. § 2705.
3
18 Pa.C.S.A. § 3503(b.1)(1)(i).
4
18 Pa.C.S.A. § 2709(a)(1).
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Attorney Sweigart confirms that she sent a copy of the Anders brief as well
as a letter explaining to Emershaw that he has the right to proceed pro se or
to retain new counsel. A copy of the letter is appended to Attorney
Sweigart’s petition. See Commonwealth v. Daniels, 999 A.2d 5990, 594
(Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005).
We now proceed to examine the issue set forth in the Anders brief.5
That issue is whether the Commonwealth presented sufficient evidence to
sustain the convictions. We agree with counsel that the Commonwealth
presented sufficient evidence.
We review a challenge to the sufficiency of the evidence as follows.
The standard we apply when 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 and substitute our
judgment for 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
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5
Emershaw has not filed a response to Attorney Sweigart’s petition to
withdraw.
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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. Furthermore, when reviewing a sufficiency
claim, our Court is required to give the prosecution the benefit of
all reasonable inferences to be drawn from the evidence.
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citation omitted).
The Crimes Code defines simple assault as an “[attempt] to cause or
intentionally, knowingly or recklessly [cause] bodily injury to another.” 18
Pa.C.S.A. § 2701(a)(1). Bodily injury is defined as the “[i]mpairment of
physical condition or substantial pain.” See 18 Pa.C.S.A. § 2301.
The Crimes Code defines the offense of recklessly endangering another
person as “conduct which places or may place another person in danger of
death or serious bodily injury.” 18 Pa.C.S.A. § 2705.
“Recklessly” is defined as follows.
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor's conduct
and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable
person would observe in the actor's situation.
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18 Pa.C.S.A. § 302(b)(3). Furthermore, 18 Pa.C.S.A. § 2301 defines “serious
bodily injury” 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.”
A person is guilty of criminal trespass “if, knowing that he is not
licensed or privileged to do so, he enters or remains in any place for the
purpose of: (i) threatening or terrorizing the owner or occupant of the
premises[.]” 18 Pa.C.S.A § 3503(b.1)(1)(i).
“A person commits the crime of harassment when, with intent to
harass, annoy or alarm another, the person strikes, shoves, kicks or
otherwise subjects the other person to physical contact, or attempts or
threatens to do the same.” 18 Pa.C.S.A. § 2709(a)(1).
We find that the Commonwealth presented sufficient evidence to
sustain each of Emershaw’s convictions. There is no dispute that Emershaw
assaulted the victim and that the victim sustained multiple injuries as a
result of the assault, including facial fractures, multiple cracked ribs, a brain
hemorrhage, and a punctured lung. These injuries, especially those to the
victim’s head and lungs, are clear evidence that Emershaw recklessly
engaged in conduct that placed the victim in danger of serious bodily injury.
Additionally, the victim’s brother, Keith Rogers, testified that Emershaw
entered his residence without permission and that he felt threatened by
Emershaw’s aggressive and belligerent behavior.
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Although Emershaw argued at trial that the victim threatened him with
the BB gun in manner that caused Emershaw to believe that he needed to
use force to protect himself, the jury was free to disbelieve this version of
the evidence and to resolve any inconsistencies in the testimony. See
Commonwealth v. Manchas, 633 A.2d 618, 624 (Pa. Super. 1993) (it is
within the province of the jury to reconcile inconsistent testimony and to
believe all, part or none of the evidence). The verdict rendered in this case
reflects the jury’s acceptance of the Commonwealth’s version of events,
which are supported by the record, and we will not usurp the jurors’ role as
the sole assessor of credibility. Emershaw’s sufficiency challenge therefore
fails.
After examining the issues contained in the Anders brief and after
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel is
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2015
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