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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TRACY A. BRITTINGHAM, : No. 2963 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, June 12, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010691-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 13, 2016
Tracy A. Brittingham appeals from the June 12, 2014 judgment of
sentence following his conviction of aggravated assault, simple assault, and
possession of an instrument of crime.1 The trial court appointed
Gary S. Server, Esq., as appellant’s counsel for both the trial and his appeal.
Attorney Server has filed a petition to withdraw, alleging that the appeal is
frivolous, accompanied by an Anders brief.2 We will grant counsel’s
withdrawal petition and affirm the judgment of sentence.
The trial court provided the following relevant facts:
1
18 Pa.C.S.A. §§ 2702(a), 2701(a), and 907(a), respectively.
2
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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1. Testimony of Police Officer Jason Tomon
On July 3, 2013, Philadelphia Police Officer
Jason Tomon was on routine patrol in the area of
2300 West Indiana Avenue in Philadelphia when he
observed a large group of people gathered at a
corner. Officer Tomon observed Defendant strike
William Wise on the top of the head and on his hands
with a two-by-four piece of wood. At the time he
was struck in the head and hands, Wise was kneeling
on the ground and putting his hands up to block the
strikes by Defendant. Officer Tomon observed
Defendant strike Wise at least two or three times in
the area of Wise’s head and his hands.
Officer Tomon never observed Wise strike, hit, or
attempt to hit Defendant, and also did not observe
any weapons or objects in Wise’s hand.
Officer Tomon was unaware of how the incident
started.
Defendant stopped hitting Wise only when he
observed Officer Tomon arrive in his police car. In
response to observing Officer Tomon, Defendant
threw down the two-by-four piece of wood and
started to walk away. Officer Tomon stopped
Defendant and arrested him. Officer Tomon did not
observe any cuts or bruises on Defendant.
According to Officer Tomon, “He was fine.” During
his arrest, Defendant told Officer Tomon that Wise
was following him. Officer Tomon does not recall
Defendant telling him that he called the police or
that Wise attacked him. To the contrary,
Officer Tomon recalled that it was a “sight job,” i.e.,
Officer Tomon stopped at the scene because of what
he observed rather than going to the scene in
response to a call to police dispatch.
After arresting Defendant, Officer Tomon went
to Wise who, at the time, could only tell
Officer Tomon his name. Officer Tomon observed
scrapes on Wise’s hand and cuts on his hand and
face. Officer Tomon recovered the two-by-four piece
of wood, which was broken into two pieces.
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....
3. Testimony by Defendant
Defendant testified that he was at 22nd and
Cambria Streets when Wise started to follow him and
said something about Defendant disrespecting his
mother or brother. Defendant believed Wise was on
PCP or angel dust. Defendant did not recognize Wise
as someone he knew. Wise continued to follow
Defendant, so Defendant called the police. In
response to Defendant calling the police, Wise went
over to Defendant and struck him with a two-by-four
piece of wood, which knocked Defendant’s cell phone
out of his hand. Defendant then grabbed the
two-by-four piece of wood and started to wrestle on
the ground with Wise. At this point, both Wise and
Defendant are holding the piece of wood. At some
point, Defendant was able to gain control of the
piece of wood. After gaining control of the piece of
wood, Defendant struck Wise’s hands with the piece
of wood in order to stop Wise from grabbing onto his
clothes. Defendant testified that, prior to striking
Wise with the piece of Wood, he did not believe he
could retreat with complete safety from Wise. He
further testified that he struck Wise in order to
prevent Wise from continuing his attack.
After Officer Tomon arrived, Defendant told the
officer that Wise had been following him for two
blocks and attacked him. Defendant also told the
officer that he had called the police and that he
wanted to press charges against Wise. Defendant
was not bleeding but testified that he had a bruise
on his shoulder.
Trial court opinion, 2/4/15 at 1-3.3
3
Wise was the victim of an unrelated homicide prior to trial on July 14,
2013. The Commonwealth and Attorney Server stipulated to the admission
of his death certificate. (Notes of testimony, 4/11/14 at 24.)
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Appellant was convicted of aggravated assault, simple assault, and
possession of an instrument of crime following a non-jury trial on April 11,
2014. The trial court sentenced appellant on June 12, 2014, to an
aggregate term of 39-120 months’ imprisonment. On June 19, 2014,
appellant filed a post-sentence motion which was denied by the trial court on
October 10, 2014. Appellant filed a notice of appeal on October 20, 2014,
and the trial court ordered appellant to file a concise statement of errors
complained of on appeal on October 21, 2014, pursuant to
Pa.R.A.P. 1925(b). Appellant complied with the trial court’s order on
October 24, 2014. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raised the following issues on appeal:
I. WHETHER THE ADJUDICATION OF GUILT IS
AGAINST THE WEIGHT OF THE EVIDENCE AND
SHOCKING TO ONE’S SENSE OF JUSTICE
WHERE THE ARRESTING OFFICER DID NOT
SEE HOW THE INCIDENT STARTED, WHERE
THE ARRESTING OFFICER TESTIFIED
INCONSISTENTLY AND UNCONVINCINGLY,
WHERE THE APPELLANT IMMEDIATELY
EXPLAINED THAT THE VICTIM HAD BEEN
FOLLOWING HIM, WHERE THE APPELLANT
TESTIFIED CONVINCINGLY THAT HE WAS
DEFENDING HIMSELF AND WHERE THERE WAS
EVIDENCE THAT THE VICTIM WAS
BELLIGERENT, AGGRESSIVE, COMBATIVE AND
OBVIOUSLY UNDER THE INFLUENCE OF A
CONTROLLED SUBSTANCE[?]
II. WHETHER THE APPELLANT’S CONVICTIONS
ARE BASED UPON INSUFFICIENT EVIDENCE
BECAUSE THE CIRCUMSTANTIAL INFERENCE
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DRAWN FROM THE EVIDENCE THAT THE
APPELLANT WAS THE AGGRESSOR AND WAS
ASSAULTIVE IS AN UNREASONABLE
INFERENCE AND NOT CONSISTENT WITH THE
EVIDENCE PRESENTED AT TRIAL[?]
III. WHETHER THE APPELLANT WAS PROVIDED
WITH INEFFECTIVE ASSISTANCE OF COUNSEL
WHERE COUNSEL FAILED TO IMPEACH A
COMMONWEALTH WITNESS WITH ALLEGED
INCONSISTENT TESTIMONY AT THE
PRELIMINARY HEARING[?]
Anders brief at 6.
On May 22, 2015, Attorney Server filed in this court a motion to
withdraw as counsel and an Anders brief, wherein Attorney Server states
there are no non-frivolous issues preserved for our review.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to
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be wholly frivolous. Counsel
must also file an Anders
brief setting forth issues that
might arguably support the
appeal along with any other
issues necessary for the
effective appellate
presentation thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to
retain new counsel, proceed
pro se or raise additional
points worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to
withdraw . . . 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
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
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point that have led to the
conclusion that the appeal is
frivolous.
Santiago, 978 A.2d at 361.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Server’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
court’s attention, and attached to the Anders petition a copy of the letter
sent to appellant as required under Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels, 999 A.2d
590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set forth
the new requirements for an Anders brief, which are quoted above, the
holding did not abrogate the notice requirements set forth in Millisock that
remain binding legal precedent.”). As Attorney Server has complied with all
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of the requirements set forth above, we conclude that counsel has satisfied
the procedural requirements of Anders.4
Once counsel has met his 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. Thus,
we now turn to the merits of appellant’s appeal.
In his first issue on appeal, appellant avers that the trial court’s verdict
was contrary to the weight of the evidence. Our standard of review for
determining whether a verdict is compatible with the weight of the evidence
is well settled:
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 the trial
4
We note that Attorney Server’s May 22, 2015 letter to appellant incorrectly
stated that appellant’s rights to respond to Attorney Server’s Anders brief
were contingent upon this court’s acceptance of the brief and allowing
Attorney Server to withdraw. In response to a per curiam order of this
court, Attorney Server notified appellant of his rights in a letter dated
June 5, 2015.
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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 decision, we have
explained:
The term “discretion” imports the
exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion
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 in 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, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted) (emphasis deleted).
A fact-finder is free to believe all, part, or none of the evidence
presented. Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa.Super.
2015) (citations omitted). This court cannot assume the task of assessing
the credibility of the witnesses or evidence presented at trial, as that task is
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within the exclusive purview of the fact-finder. Hankerson, 118 A.3d at
420 (citations omitted).
Appellant specifically avers that Officer Tomon’s testimony during trial
was inconsistent with his testimony during the preliminary hearing.
(Anders brief at 15.) Appellant also avers that “it is shocking to one’s sense
of justice that [the trial judge] believed Officer Tomon and not the
appellant.” (Id. at 16.) The trial court made the following credibility
determination:
In making its credibility determination, the trial court
considered the evidence presented by the Defendant,
including that Wise was the first aggressor and that
Defendant acted in self-defense. The trial court also
observed Defendant’s demeanor and manner of
testifying at trial and considered that Defendant has
two crimen falsi convictions. Last, the trial court
considered the extent to which the testimony of
Officer Tomon and Defendant were corroborated by
other evidence, such as the medical records.
Weighing all of these facts and evidence, the trial
court chose to discredit Defendant’s testimony in its
entirety and to credit Officer Tomon’s testimony.
Trial court opinion, 2/4/15 at 3-4.
Appellant waived his right to a jury trial; therefore, the trial court
functioned as the fact-finder for his trial. Pursuant to this court’s decision in
Mosley, the trial court was free to believe all of Officer Tomon’s testimony
and none of appellant’s testimony, as it did in the instant case. We
therefore find the trial court did not abuse its discretion by denying
appellant’s weight of the evidence challenge.
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Appellant next raises whether the evidence was sufficient to warrant
his convictions. We are subjected to the following standard of review:
In reviewing the sufficiency of the evidence,
we view all evidence admitted at trial in the light
most favorable to the Commonwealth, as verdict
winner, to see whether there is sufficient evidence to
enable [the fact-finder] to find every element of the
crime beyond a reasonable doubt. This standard is
equally applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to a
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of
the evidence, the Court may not substitute its
judgment for that of the fact finder; if the record
contains support for the convictions, they may not
be disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted).
Moreover, when applying the above test, the
entire record must be evaluated and all evidence
actually received must be considered. Finally, the
finder of fact, while passing upon the credibility of
the witnesses and the weight of the evidence
produced, is free to believe all, part, or none of the
evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted).
We first review appellant’s aggravated assault conviction. Aggravated
assault is defined as when a person “attempts to cause or intentionally or
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knowingly causes bodily injury to another with a deadly weapon.”
18 Pa.C.S.A. § 2702(a)(4). A deadly weapon is defined as “any . . . device
or instrumentality which, in the manner which it is used . . . is calculated or
likely to produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301. See
also Commonwealth v. McCullum, 602 A.2d 313, 323 (Pa. 1992) (“A
deadly weapon need not be, of course, an inherently lethal instrument or
device”).
Here, the Commonwealth produced sufficient evidence to convict
appellant of aggravated assault. When viewed in the light most favorable to
the Commonwealth, as verdict winner, Officer Tomon’s testimony satisfies
the required elements to obtain a conviction of aggravated assault.
First, Officer Tomon testified that he observed appellant strike Wise
several times in the head and hands with a two-by-four piece of wood,
causing bodily injury. (Notes of testimony, 4/11/14 at 9, 11.)
Officer Tomon testified further that Wise had his hands up, trying to avoid
being struck by the two-by-four. (Id. at 10.) Upon Officer Tomon’s arrival
to the scene, Wise had multiple visible injuries, including scrapes on the
palms of his hands and cuts on his head and face. (Id. at 14.) Wise’s
injuries required that he be transported by ambulance to the Temple
University Medical Center. (Id.) The two-by-four piece of wood, when used
to strike a person in the head and hands, is a deadly weapon pursuant to
our supreme court’s decision in McCullum.
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The trial court also noted that appellant raised a valid self-defense
argument. (See trial court opinion, 2/4/15 at 6.) In order for a defendant
to successfully claim self-defense, he or she must meet the following three
elements: (1) the defendant reasonably believed that he was in imminent
danger of death or serious bodily injury and that the use of deadly force was
necessary to prevent such harm; (2) the defendant did not provoke the
incident which resulted in the use of force; and (3) the defendant did not
violate any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740
(Pa. 2012) (citations omitted). The Commonwealth has the burden of
disproving self-defense beyond a reasonable doubt, and may do so by
disproving any one of the three self-defense elements the defendant must
meet. Mouzon, 53 A.3d at 740-741.
Here, we only need to address the first factor discussed in Mouzon:
whether appellant reasonably believed that he was in imminent danger of
death or serious bodily injury and that the use of deadly force was necessary
to prevent such harm. The fact-finder has the sole purview over
determining whether a defendant’s belief of imminent danger is reasonable.
Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa.Super. 2005).
Appellant claimed that Wise was following him and had attacked him
first with the two-by-four piece of wood. (Notes of testimony, 4/11/14 at
32-33.) Appellant further testified that, after appellant had control of the
two-by-four, Wise was attempting to grab hold of appellant. (Id. at 34.)
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Based on both appellant’s testimony, and Officer Tomon’s testimony that
appellant struck Wise on his head and hands while Wise had his hands raised
to prevent being struck, we find that the Commonwealth has proven beyond
a reasonable doubt that appellant was never reasonably in any imminent
danger of death or serious bodily harm, and therefore his self-defense claim
must fail.
For these reasons, we find that the Commonwealth has met its burden
of disproving appellant’s self-defense claim beyond a reasonable doubt, and
that the evidence fully supports the trial court’s guilty verdict on the
aggravated assault charge.5
We now turn to the sufficiency of the evidence for appellant’s
conviction of possession of an instrument of crime. An individual is guilty of
possession of an instrument of crime “if he possesses any instrument of
crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). The
statute defines instrument of crime as “anything used for criminal purposes
and possessed by the actor under circumstances not manifestly appropriate
for lawful uses it may have.” 18 Pa.C.S.A. § 907(d)(2).
In the instant case, as noted above, Officer Tomon testified that he
personally observed appellant striking Wise with the two-by-four piece of
5
Attorney Server did not include an analysis of the sufficiency of the
evidence of the simple assault charge in his Anders brief. Such analysis is
unnecessary, as all the elements of simple assault are met by appellant’s
aggravated assault conviction. See Commonwealth v. Brown, 605 A.2d
429, 432 (Pa.Super. 1992).
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wood. Based on Officer Tomon’s testimony, when taken in the light most
favorable to the Commonwealth, we find that the Commonwealth has
produced evidence sufficient to warrant a conviction for possession of an
instrument of crime, and therefore, appellant’s sufficiency of the evidence
claim is without merit.
Finally, appellant’s third issue raised for our review is whether
appellant’s counsel at trial provided ineffective assistance.6 It is a general
rule that claims of ineffective assistance of counsel are inappropriate for
direct appeal, and should be brought on collateral review pursuant to the
Post Conviction Relief Act.7 Commonwealth v. Grant, 813 A.2d 726, 738
(Pa. 2002). Therefore, we will not review the merits of appellant’s
ineffective assistance of counsel claims, as this is not the appropriate forum
to do so.
In sum, we find this appeal to be wholly frivolous, and our
independent review of the entire record has not disclosed any other
potentially non-frivolous issues. Consequently, we grant counsel’s petition
to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Commonwealth’s motion for acceptance of brief as timely filed granted.
6
Appellant responded to Attorney Server’s Anders brief by raising an
additional 14 issues, all of which related to allegations of Attorney Server
providing ineffective assistance at trial.
7
42 Pa.C.S.A. §§ 9541-9546.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
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