J-S75045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTWINE HOLDER, :
:
Appellant : No. 1104 EDA 2018
Appeal from the Judgment of Sentence March 2, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011307-2014
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 11, 2019
Antwine Holder (“Holder”) appeals from the judgment of sentence
imposed following his conviction of attempted murder, aggravated assault,
kidnapping, persons not to possess firearms, firearms not to be carried
without a license, and carrying firearms on public streets or public property in
Philadelphia. See 18 Pa.C.S.A. §§ 901, 2702(a)(1), 2901(a)(2), 6105, 6106,
6108. Counsel for Holder has filed an Application to Withdraw as Counsel,
and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Holder, pro se, has
filed a Response to counsel’s Application to Withdraw. Upon review, we grant
counsel’s Application to Withdraw, and affirm Holder’s judgment of sentence.
The trial court summarized the relevant factual history underlying the
instant appeal as follows:
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On August 24, 2014, at approximately 12:30 A.M., Yanna
Thorn [(“Thorn”]) drove her girlfriend[,] Kendra Devine
[(“Devine”),] to the rear of Academy and Woodhaven Roads in
Philadelphia to meet [Holder]. [] Devine planned to buy a
designer bag from [Holder] and orchestrate a “bank Scheme” with
him. When they arrived at the location, [Holder] got in the
backseat behind [] Devine. [] Devine asked [Holder] where the
bag was. [Holder] responded by drawing his gun, cocking it, and
saying “Y’all bitches know what time it is” (N.T. 11/4/15, 84).
[Holder] patted both women down and took their cell phones and
money. Dissatisfied with the amount of money, [Holder]
demanded[,] “Where is the rest of the money[?] I’m not playing.
I will kill y’all….” [] Devine told him that she could get more
money from the Bank of America on Walnut Street between 38 th
and 39th Streets. As [] Thorn drove them to the bank, [Holder]
began beating [] Devine’s head with his gun. He then dragged
her from the front seat to the back seat, where he continued to
strike her with his gun and fists and began to kick and stomp on
her as well. [Devine]—who suffers from asthma—struggled to
breath[e], but [Holder] refused to allow her to use her inhaler.
When they arrived at the bank, [] Devine went into the
vestibule to withdraw money, while [Holder] held [Thorn] at
gunpoint in the car. Four or five minutes later, [] Devine returned
and said that she was unable to make a withdrawal and would
have to go to a different bank at 16th Street and JFK Boulevard.
[Holder] warned that if she kept playing games, he would kill
them. [] Thorn drove to the JFK branch, but [Holder] refused to
let them out of the car. Instead, he ordered [] Thorn to drive
them to Uber Street in North Philadelphia. During the course of
the drive, [Holder] continued to beat [] Devine.
Once they arrived on Uber Street, [Holder] dragged []
Devine from the car and threw her to the ground. As [] Devine
lay face down, [Holder] kicked her head against the tire of an
adjacent car, stomped on her upper body, and repeatedly struck
her face with his gun. He then told [] Thorn to take [] Devine’s
ATM card and make a withdrawal. When [] Devine said only she
had access to the account, [Holder] ordered [] Thorn to drive away
or he would kill her. [] Thorn drove approximately one block, and
called the police. When the police arrived, [] Thorn brought them
to [] Devine. [Holder] was no longer on the scene.
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Using [] Devine’s phone records, police traced [Holder’s]
phone number to his home address, where he was arrested on
September 4, 2014. Upon executing the search warrant for the
residence, police recovered [] Thorn’s cell phone, two firearms,
boots and clothing matching the description [] Thorn had
provided, and cocaine and drug paraphernalia. A swab taken from
the bottom of [Holder’s] boots tested positive for [] Devine’s DNA.
[] Devine had been taken from the scene of the assault to
Hahnemann University Hospital, where she remained in the
Intensive Care Unit for more than a month. She suffered from a
right subdural hemorrhage, requiring two surgeries. She was
unable to breath[e] or eat on her own. She received a
tracheotomy[,] and a feeding tube was inserted directly into her
stomach. She also suffered multiple facial fractures and chipped
teeth. At the time of trial—more than one year after the brutal
assault—[] Devine could no longer use her right hand, was still
attending speech, occupational, and physical therapy three times
a week, was wheelchair[-]bound, and was unable to use the
bathroom on her own.
Trial Court Opinion, 1/27/17, at 1-3 (footnote and internal citations omitted).
Following a jury trial, Holder was convicted of the above-described
crimes. The trial court deferred sentencing and ordered a pre-sentence
investigation report. On February 24, 2016, the trial court sentenced Holder
to an aggregate term of 44 to 102 years in prison. Relevant to this appeal,
the trial court imposed a prison term of 20 to 40 years for Holder’s kidnapping
conviction. On March 7, 2016, Holder filed a Motion for Reconsideration, which
the trial court denied.
On appeal, this Court vacated Holder’s sentence and remanded for
resentencing, concluding that the trial court’s imposition of a “second strike”
sentence for kidnapping violated the statutory maximum for that crime.
Commonwealth v. Holder, 181 A.3d 1279 (Pa. Super. 2017) (unpublished
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memorandum at 2). On remand, the trial court conducted another sentencing
hearing, after which it modified Holder’s kidnapping sentence to 10 to 20
years, and re-imposed the same sentence for the remaining crimes.
Thereafter, Holder filed the instant timely appeal. Upon the trial court’s Order,
counsel filed a Pa.R.A.P. 1925(c)(4) Notice of intent to file an Anders brief in
lieu of a concise statement of matters complained of on appeal. The trial court
did not file a Rule 1925(a) opinion.
As a preliminary matter, we address counsel’s Application to Withdraw.
“When 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) (citation
omitted). In order for counsel to withdraw from an appeal pursuant to
Anders, our Supreme Court has determined that counsel must meet certain
requirements, including:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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In the instant case, counsel has substantially complied with all of the
requirements of Anders, as articulated in Santiago. See Commonwealth
v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). In his Application to
Withdraw, Holder’s counsel indicates that he has made a conscientious
examination of the record and determined that an appeal would be frivolous.
Application to Withdraw, 8/13/18, at ¶ 4. Further, counsel’s Anders Brief
comports with the requirements set forth by the Supreme Court of
Pennsylvania in Santiago. Finally, counsel provided Holder with a copy of the
Anders Brief, and advised Holder of his rights to retain new counsel, or to
raise any additional points deemed worthy of the Court’s attention. See id.,
¶ 8. Thus, counsel has complied with the procedural requirements for
withdrawing from representation. We next examine the record and make an
independent determination of whether Holder’s appeal is, in fact, wholly
frivolous. See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc) (noting that Anders requires the reviewing court to “review
‘the case’ as presented in the entire record[,] with consideration first of issues
raised by counsel.”).
The Anders Brief presents the following claims for our review:
[1.] Was the verdict against the weight of the evidence to such a
degree that it shocks one’s conscience?
[2.] Was the sentence imposed upon [Holder] by the [trial] court
manifestly excessive?
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Anders Brief at 5 (issues renumbered). In his pro se Response to counsel’s
Application to Withdraw, Holder again challenges his sentences as excessive,
and additionally questions whether “the victims suffer[ed] bodily injury or
harm sufficient enough to statutorily fall under the sentence imposed for
attempted murder?” Pro Se Response, 11/1/18, at 3 (unnumbered).
In the Anders Brief, Holder first claims that the verdict is against the
weight of the evidence. Anders Brief at 21. Counsel correctly points out that
such claim is waived, as Holder did not file a post-sentence motion challenging
the verdict as against the weight of the evidence. Id. We agree.
Pennsylvania Rule of Criminal Procedure 607(A) provides that “[a] claim
that the verdict was against the weight of the evidence shall be raised with
the trial judge in a motion for a new trial: (1) orally, on the record, at any
time before sentencing; (2) by written motion at any time before sentencing;
or (3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). As our Supreme
Court has explained,
[t]he decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Commonwealth v.
Cousar, 593 Pa. 204, 928 A.2d 1025, 1033, 1036 (Pa. 2007).
Thus, “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.” Commonwealth v. Rivera, 603 Pa.
340, 983 A.2d 1211, 1225 (Pa. 2009). An appellate court may
not overturn the trial court’s decision unless the trial court
“palpably abused its discretion in ruling on the weight claim.”
Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408
(Pa. 2003). Further, in reviewing a challenge to the weight of the
evidence, a verdict will be overturned only if it is “so contrary to
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the evidence as to shock one’s sense of justice.” Commonwealth
v. Diggs, 597 Pa. 28, 949 A.2d 873, 879 (Pa. 2008).
Commonwealth v. Cash, 137 A.3d 1262, 1270 (Pa. 2016).
Instantly, Holder did not preserve his challenge to verdict as against the
weight of the evidence before the trial court by any of the methods set forth
in Rule 607(A). Because we would be unable to review the trial court’s
exercise of its discretion, Holder’s claim in this appeal is waived and frivolous.1
In the Anders Brief, and in Holder’s Pro Se Response, Holder claims
that his sentence is excessive. Anders Brief at 24; Pro Se Response, 11/1/18,
at 3-4 (unnumbered). Counsel, however, explains that Holder failed to file a
post-sentence motion raising this claim and, consequently, it is waived and
frivolous. Anders Brief at 24. In his Pro Se Response, Holder argues that his
present counsel rendered ineffective assistance by failing to preserve this
claim in a post-sentence motion. Pro Se Response, 11/1/18, at 3-4.
An appeal challenging the discretionary aspects of sentencing is not an
appeal as of right. Commonwealth v. Flowers, 137 A.3d 1262, 1252 (Pa.
____________________________________________
1 Holder’s counsel properly points out that,
[t]o the extent that [] Holder was deprived of his right to effective
assistance of counsel due to a failure to raise a claim that the
verdict is against the weight of the evidence, this claim may be
more properly raised in the context of a claim under the Post[]
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq.
Anders Brief at 21.
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Super. 2015). An appellant must meet the requirements that the appeal was
timely; the issues were preserved; and that his brief contains a concise
statement of the reasons relied upon for allowance of appeal.
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006). “To
preserve an attack on the discretionary aspects of sentence, an appellant must
raise his issues at sentencing or in a post-sentence motion.” Id. at 1251.
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing[,] or in a motion to modify the
sentence imposed at that hearing.” Commonwealth v. Evans, 901 A.2d
528, 533-34 (Pa. Super. 2006); see also Pa.R.A.P. 302(a) (stating that an
issue cannot be raised for the first time on appeal). Because Holder did not
raise this claim in at sentencing or in a post-sentence motion, it is waived.
See id. To the extent that Holder claims that his counsel rendered ineffective
assistance by failing to file a post-sentence motion, such claim may be raised
in the context of a claim under the PCRA.
In his Pro Se Response, Holder additionally claims that the victims did
not suffer “bodily injury sufficient enough to statutorily fall under the sentence
imposed for attempted murder.” Pro Se Response, 11/1/18, at 3
(unnumbered). However, Holder provides no additional argument to support
his sufficiency challenge.
As our Supreme Court has explained,
[c]hallenges to the sufficiency of the evidence are governed by
our familiar and well-established standard of review. We consider
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the evidence presented at trial de novo. We are obliged to
evaluate that evidence in the light most favorable to the
Commonwealth, as the verdict winner, and we draw all reasonable
inferences therefrom in the Commonwealth’s favor. Through this
lens, we must ascertain whether the Commonwealth proved all of
the elements of the crime at issue beyond a reasonable doubt.
This is a question of law. Our scope of review is plenary.
Commonwealth v. Chambers, 188 A.3d 400, 409 (Pa. 2018) (citations
omitted).
A conviction for attempted murder requires the Commonwealth to prove
beyond a reasonable doubt that the defendant had the specific intent to kill
and took a substantial step towards that goal. 18 Pa.C.S.A. §§ 901, 2502.
In this case, the Commonwealth presented evidence that Holder
threatened to kill Devine and Thorn. N.T., 11/4/15, at 90. Further, the
evidence established that while Thorn drove Devine and Holder, Holder beat
Devine on the head with his gun; Holder dragged Devine from the front seat
to the back seat, where he continued striking Devine with his guns and fist;
Holder stomped on Devine; Holder continued these actions while Devine who
had asthma, struggled to breathe; and as Devine struggled to breathe, Holder
refused to allow Devine to use her inhaler. Id. at 82, 84, 88, 90-92, 95-97,
162, 166. Further, Holder subsequently dragged Devine from the car, kicked
her head against the tire of an adjacent car, stomped on her upper body, and
struck her face with his firearm. Id. at 105-10, 171. This evidence is amply
sufficient to establish that Holder has a specific intent to kill, and took a
substantial step towards that goal. See 18 Pa.C.S.A. §§ 901, 2502.
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Following our independent review of the record, we agree the appeal is
frivolous, and grant counsel’s Application to Withdraw. Accordingly, we affirm
Holder’s judgment of sentence.
Application to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/19
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