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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DESMOND LAMAR SNEAD :
:
Appellant : No. 40 WDA 2019
Appeal from the Judgment of Sentence Entered August 9, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004162-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 06, 2020
Desmond Lamar Snead appeals from the judgment of sentence entered
following his conviction for aggravated assault.1 Snead’s counsel previously
filed an Anders2 brief and request to withdraw, which we denied. Counsel has
since filed a new Anders brief and request to withdraw. We now grant
counsel’s request to withdraw and affirm Snead’s judgment of sentence.
At Snead’s non-jury trial, the Commonwealth presented the testimony
of the victim. The victim testified that while she was waiting for a bus, a car
carrying Snead, who was the victim’s neighbor, and Snead’s codefendant
drove past her. The car then made a U-turn and stopped between ten and 12
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2702(a)(1).
2 Anders v. California, 386 U.S. 738 (1967).
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feet from her. Snead, seated in the rear passenger seat, stuck his head out of
the car window and made eye contact with the victim. Snead and the
codefendant started firing guns from the car windows, striking the victim in
her thigh. The victim thereafter identified Snead from a photo array, and
identified Snead in the courtroom during trial. The Commonwealth also
presented two police detectives, who testified to recovering two nine-
millimeter shell casings near the scene of the shooting, and recounted that
the victim identified Snead after the shooting without hesitation.
The court found Snead guilty and sentenced him to serve four to eight
years’ incarceration. Shortly after sentencing, Snead’s counsel requested to
withdraw, and newly appointed counsel entered his appearance.3 Snead’s new
counsel filed a post-sentence motion, challenging the sufficiency of the
evidence. The motion was denied by operation of law, and Snead filed a timely
notice of appeal.
As noted above, Snead’s counsel previously filed a motion to withdraw
in this Court. We denied that request because counsel failed to represent that
the appeal was wholly frivolous, and had not advised Snead of his right to
raise immediately any additional points for our review, either pro se or through
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3 Snead’s sentencing took place on August 9, 2018. Counsel filed a motion to
withdraw on August 17, and new appointed counsel entered his appearance
on August 20. On August 22, Snead’s new counsel filed a petition to reinstate
Snead’s post-sentence and appeal rights nunc pro tunc, which the trial court
granted within 30 days of sentencing. The trial court thus had jurisdiction to
grant such relief, see Commonwealth v. Dreves, 839 A.2d 1122, 1128 n.6
(Pa.Super. 2003) (en banc), and our jurisdiction over this appeal is proper.
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other counsel. See Commonwealth v. Snead, No. 40 WDA 2019 at *2-3
(Pa.Super., filed October 21, 2019) (unpublished memorandum). Counsel has
since filed a new motion to withdraw and a new Anders brief.
After a review of the new withdraw request and Anders brief, we are
satisfied that Snead’s counsel has cured the previous defects and conformed
to the necessary technical requirements. See Snead, No. 40 WDA 2019 at
*1-2. We therefore turn to our independent review of whether the appeal is
wholly frivolous. Commonwealth v. Dempster, 187 A.3d 266, 271-72
(Pa.Super. 2018) (en banc). We note that Snead has not responded to
counsel’s withdrawal request or filed any other documents in this Court.
In the Anders brief, counsel discusses the sole issue raised in Snead’s
post-sentence motion:
Was the evidence presented by the Commonwealth sufficient to
sustain the verdict, when the record shows that the victim failed
to identify [Snead] as the shooter and there was no other evidence
tending to establish that [Snead] was present at the scene and
involved with the shooting, requiring the fact finder to rely on
conjecture to decide the case?
Anders Br. at 3.
“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.” Commonwealth
v. Miller, 217 A.3d 1254, 1256 (Pa.Super. 2019) (quoting Commonwealth
v. Bradley, 69 A.3d 253, 255 (Pa.Super. 2013)). We review the evidence de
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novo, but do not substitute our weighing of the evidence for that of the fact-
finder, who is free to believe all, part, or none of the evidence.
Commonwealth v. Hall, 199 A.3d 954, 960 (Pa.Super. 2018), appeal
denied, 206 A.3d 1028 (Pa. 2019). We will not find the evidence insufficient
unless it is “so weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances.” Miller, 217 A.3d at
1256.
To prove the defendant guilty of aggravated assault under the relevant
subsection, the Commonwealth must present evidence to establish the
defendant “attempt[ed] to cause serious bodily injury to another, or cause[d]
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); see also Commonwealth v. Lopez, 57 A.3d 74, 79 (Pa.Super.
2012). “[F]or the degree of recklessness contained in the aggravated assault
statute to occur, the offensive act must be performed under circumstances
which almost assure that injury or death will ensue.” Commonwealth v.
Thompson, 739 A.2d 1023, 1028 (Pa. 1999) (quoting Commonwealth v.
O’Hanlon, 653 A.2d 616, 618 (Pa. 1995)).
Here, the Commonwealth presented evidence that Snead shot the
victim. The victim identified Snead, both to the police and in the courtroom,
and recognized him as a neighbor. The victim testified that Snead pointed a
gun out of a car window and fired it in her direction. The Commonwealth also
presented evidence that Snead acted recklessly. The victim testified that the
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car carrying Snead made a U-turn in order to return to where she was
standing, she and Snead made eye contact, and Snead, along with another
individual in the car, fired multiple shots in her direction, striking her in the
leg. We conclude this evidence was sufficient to establish the elements of
aggravated assault.
Our review of the record reveals no other issue that would not be wholly
frivolous to pursue on appeal.4 We therefore grant counsel’s motion to
withdraw, and affirm Snead’s judgment of sentence.
Judgment of sentence affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2020
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4 We note the transcript of the sentencing hearing is not included in the
certified record.
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