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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FRANK JUSTINIANO
Appellant No. 837 EDA 2015
Appeal from the Judgment of Sentence March 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001500-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED May 11, 2016
Appellant Frank Justiniano appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for aggravated assault, attempt of murder in the first
degree, criminal conspiracy and possession of an instrument of crime
(“PIC”).1 After review, we affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this appeal are as follows.
On October 24, 2012, Christopher Corisdeo (“Victim”), who was high on PCP
and swinging his arms back and forth, struck Myleidi Rodriguez as he walked
past her on East Dauphin Street. N.T., 12/03/2014, at 38. In response to
this, Appellant and the four other males that accompanied Ms. Rodriguez
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1
18 Pa.C.S. §§ 2702(a)(1), 901, 2502(a), 903(c), and 907(a), respectively.
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began to punch and kick Victim. Id. at 39-40. The group dragged Victim to
the lot on the corner of the street, removed his clothing, and continued to
kick and punch him. Id. at 41-43. Appellant then picked up a cement block
and dropped or threw it onto Victim’s face. Id. at 13, 48, 115. Victim
survived, endured reconstructive surgery, and now suffers from memory
loss, speech problems, dizziness, depression, and anxiety. Sentencing N.T.,
3/17/2015, at 15-16.
On December 4, 2014, after a bench trial, the trial court convicted
Appellant of the aforementioned crimes. On March 17, 2015, the court
sentenced Appellant consecutively to 20-40 years’ incarceration for
attempted murder and 10-20 years’ incarceration for criminal conspiracy.
The court imposed a concurrent sentence of 1-2 years’ incarceration for
PIC.2
On April 14, 2015, Appellant filed a timely notice of appeal. On May 7,
2015, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant’s
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2
Appellant’s aggravated assault conviction merged for sentencing purposes.
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counsel filed a statement of intent to file an Anders3 brief pursuant to
Pa.R.A.P. 1925(c)(4) on May 26, 2015.4
On November 4, 2015, Appellant’s counsel filed a petition for leave to
withdraw along with an Anders brief.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders and Commonwealth v. Santiago, 978
A.2d 349 (Pa.2009). 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
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.
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
appellant of his or her right to “(1) retain new counsel to pursue the appeal;
(2) proceed pro se on appeal; or (3) raise any points that the appellant
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3
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967).
4
On May 15, 2015, this Court dismissed Appellant’s appeal for failure to
comply with Pa.R.A.P. 3517. On May 19, 2015, Appellant filed an application
to reinstate his appeal, which this Court granted on June 2, 2015. Our June
2, 2015 order vacated our order of May 15, 2015.
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deems worthy of the court’s attention in addition to the points raised by
counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super.2007), appeal denied, 936 A.2d 40 (Pa.2007). Substantial
compliance with these requirements is sufficient. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the
antecedent requirements have been met, this Court must then make an
independent evaluation of the record to determine whether the appeal is, in
fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246
(Pa.Super.2006).
Here, counsel filed a petition for leave to withdraw as counsel along
with an Anders brief and a letter advising Appellant of his right to obtain
new counsel or proceed pro se to raise any points he deems worthy of the
court’s attention in addition to the one raised in the Anders brief. The
petition states that counsel determined there were no non-frivolous issues to
be raised on appeal, notified Appellant of the withdrawal request, supplied
him with a copy of the Anders brief, and sent him 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. 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. See Anders Brief, at 5-8, 10-16.
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Accordingly, counsel has substantially complied with the technical
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 issues raised
in the Anders brief. The only issue listed is as follows:
IS [APPELLANT’S] APPEAL FRIVOLOUS SUCH THAT
COUNSEL SHOULD BE PERMITTED TO WITHDRAW?
Anders Brief at 4. This issue reflects counsel’s request to withdraw, which
we grant herein after a discussion of Appellant’s other underlying issues.
In the Anders brief, counsel submits that any challenges to the
sufficiency of the evidence or the discretionary aspects of Appellant’s
sentence would fail. We agree.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
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
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
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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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
Appellant was convicted of the following statutorily defined crimes:
§ 2702. Aggravated assault
(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. § 2702.
§ 903. Criminal conspiracy
(c) Conspiracy with multiple criminal objectives.--If a
person conspires to commit a number of crimes, he is
guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or
continuous conspiratorial relationship.
18 Pa.C.S. § 903(c).
§ 907. Possessing instruments of crime
(a) Criminal instruments generally.--A person commits
a misdemeanor of the first degree if he possesses any
instrument of crime with intent to employ it criminally.
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18 Pa.C.S. § 907.
§ 901. Criminal attempt
(a) Definition of attempt.--A person commits an
attempt when, with intent to commit a specific crime, he
does any act which constitutes a substantial step toward
the commission of that crime.
18 Pa.C.S. § 901.
§ 2502. Murder
(a) Murder of the first degree.--A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.
18 Pa.C.S. § 2502(a).
Here, viewing all of the evidence in the light most favorable to the
Commonwealth, there was sufficient evidence for the court to find that
Appellant, along with several others, brutally beat Victim and personally
smashed a concrete block on his face. Thus, there was sufficient evidence to
enable the fact-finder to find every element of Appellant’s crimes beyond a
reasonable doubt. We agree with counsel that a challenge to the sufficiency
of the evidence would be frivolous.
Similarly, any challenge to the discretionary aspects of Appellant’s
sentence would fail.
Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011). Before this Court can address such a discretionary
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challenge, an appellant must invoke this Court’s jurisdiction by satisfying the
following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Id.
Here, Appellant did not properly preserve the issue at sentencing or in
a motion to reconsider or modify sentence. Thus, he has not invoked this
Court’s jurisdiction, and we cannot address Appellant’s challenge to the
discretionary aspects of his sentence.
Counsel is correct that claims of ineffective assistance of counsel are
generally to be deferred to collateral review. See Commonwealth v.
Holmes, 79 A.3d 562, 576 (Pa.2013).
Further, after an independent review of the record, we agree with
counsel that this appeal is wholly frivolous.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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