Com. v. Branch, D.

J-S27009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEXTER BRANCH :
:
Appellant : No. 434 EDA 2019

Appeal from the Judgment of Sentence Entered December 14, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004887-2015

BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: Filed: November 25, 2020

Dexter Branch appeals from the December 14, 2018 judgment of

sentence of seven to fourteen years of imprisonment imposed after he was

found guilty by a jury of aggravated assault, simple assault, and recklessly

endangering another person (“REAP”).1 Appellant’s appointed counsel has

filed a petition to withdraw and a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). Appellant has not filed a response to counsel’s petition to withdraw.

Following our review, we grant counsel’s petition to withdraw and affirm the

judgment of sentence.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702, 2701, and 2705, respectively.
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The facts underlying Appellant’s arrest and conviction are as follows. On

April 19, 2015, about 6:00 p.m., Thomas Haefner (“the victim”), was walking

in the area of North 28th and West York Streets in Philadelphia when three

men yelled, “[H]ey white boy, come here.” N.T., 3/2/16, at 88. The victim

kept walking, whereupon he was attacked from behind by Appellant and two

unknown males. Id. at 89–90. Immediately after the attack began, the victim

fell to the ground and attempted to cover his face with his hands to protect

himself. Id. at 91. The men punched, kicked, and stomped the victim for

three to five minutes; at first, it was the three attackers, in the end, only

Appellant continued the attack. Id. 91–92. There was a substantial size

difference between the victim and Appellant: the victim weighed about 150

pounds and Appellant weighed between 250 to 300 pounds. Id. at 211.

Pamela Johns, an eyewitness to the conclusion of the attack, testified at

trial. N.T., 3/2/16, at 55–83. Ms. Johns testified that as she left a laundromat

at 29th and York Streets about 6:00 p.m. on April 19, 2015, she heard people

screaming and pointing as they exited a church in the area. Id. at 57–58.

Ms. Johns ran over and observed Appellant striking the victim with his fists

approximately ten to fifteen times. Id. at 60–64. Ms. Johns described

Appellant standing over the victim and punching him while the victim was on

the ground attempting to cover his face with his hands throughout the attack.

Id. at 61–63. People exiting the church telephoned police, who arrived shortly

thereafter. Id. at 64.

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Both officers who arrived on the scene testified. Officer John

Mulqueeney testified he and his partner, Officer John Case, were on routine

patrol in a marked police vehicle in the area of 29th and West York Streets

when they were flagged down by a person screaming that there was a man

being assaulted. N.T., 3/1/16, at 56–57. When the officers arrived, the victim

was on the ground, bleeding. Id. at 57. Both officers exited their vehicle,

and a bystander started pointing at Appellant and yelling, “[H]e is getting

away.” Id. at 59. Officer Mulqueeney stayed with the victim, while Officer

Case ran after Appellant. Id. at 61. Officer Case testified he wore a body

camera, which he described as a “digital electronic recording device that we

wear on our person.” N.T., 3/2/16, at 12. Officer Case testified that as he

ran after Appellant, he “was able to turn [his] body camera on.” Id. at 14.

The video, in part, was shown at trial. Id. at 15.

As a result of the attack, the victim spent six days in the hospital. N.T.,

3/2/16, at 95, 262. The victim suffered two jaw fractures that required

surgery, a nasal fracture, broken ribs, a punctured lung, and a laceration to

his forehead resulting in a scar running from the bridge of his nose to the top

of his head. Id. at 95–102, 262–263. At the time of trial, eleven months

after the attack, the victim still had metal plating in his mouth and remained

unable to eat hard foods. Id. at 98–100.

A jury trial began on March 1, 2016, where Appellant, the victim, Ms.

Johns, the officers who arrived at the scene, and a social worker from the

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hospital, all testified. The Commonwealth introduced the victim’s medical

records and photographs of the victim taken after the attack that documented

the severity of the victim’s injuries. Appellant was convicted of the above-

described charges on March 3, 2016. Sentencing was delayed for the

completion of a presentence investigation (“PSI”) report and thereafter, for a

mental health evaluation and Appellant’s incompetency. Eventually, Appellant

was sentenced on December 14, 2018, to seven to fourteen years of

imprisonment for aggravated assault, with no further penalty for the

remaining charges. N.T. (Sentencing), 12/14/18, at 28; Order of Sentence,

12/14/18. On December 23, 2018, Appellant filed a post-sentence motion,

which the trial court denied on January 7, 2019. Appellant filed a notice of

appeal, and the trial court directed the filing of a statement pursuant to

Pa.R.A.P. 1925. Pursuant to Pa.R.A.P. 1925(c)(4), Appellant filed a statement

indicating that he would file an Anders brief; the trial court did not file an

opinion.

Before we address any question raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that counsel must:

1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he

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or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.

Id. at 1032 (citation omitted).

In addition, our Supreme Court, in Santiago, 978 A.2d 349, stated that

an Anders 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 filed the required petition2 averring that after a conscientious

review of the record, he found the appeal to be wholly frivolous. Petition for

Leave to Withdraw as Counsel, 3/24/20, at ¶ 3. He filed an Anders brief

discussing issues that Appellant wanted to pursue and concluded further that

no other issues could reasonably support the appeal. Anders Brief at 13. He

____________________________________________

2 We note that counsel’s Petition for Leave to Withdraw as Counsel contains
an inaccurate statement regarding Appellant’s conviction and sentence,
suggesting that counsel perhaps utilized a cut-and-paste template. This
isolated improper reference does not impact the nature and substance of the
petition, nor does it negate counsel’s stated review of the record. The brief
and letter to Appellant both contain correct information and facts. Anders
Brief at 1–3; Letter to Appellant, 4/24/20.

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provided Appellant with copies of his petition and brief and advised Appellant

that he could retain new counsel or proceed pro se and raise additional

arguments. Letter to Appellant, 3/24/20. Thus, counsel complied with the

technical Anders requirements.

Also, counsel’s brief is sufficiently compliant with Santiago. The brief

sets forth the history of this case and refers to the notes of testimony,

pertinent case authority, and sets forth issues of arguable merit. Anders

Brief at 1–12. Further, the brief advances counsel’s conclusion that the appeal

is frivolous and the reason for counsel’s conclusion. Id. at 7. Accordingly, we

proceed to examine the issues counsel identified in the Anders brief, and then

we conduct “a full examination of all the proceedings, to decide whether the

case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195

(Pa. Super. 2018) (en banc).

Counsel identified the following issue in his Anders brief: “Is

[Appellant’s] appeal frivolous such that counsel should be permitted to

withdraw?” Anders Brief at 2. While this statement of question to be raised

on appeal is insufficient, the Anders brief set forth three subparts, which we

have renumbered for ease of disposition, as follows:

A. The Evidence Presented Was Insufficient to Sustain the Jury’s
Verdict

B. The Jury’s Verdict Was Against the Weight of the Evidence

C. The Sentence Imposed Constituted an Abuse of Discretion

Anders Brief at 8, 10, 12.

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Appellant’s first issue assails the sufficiency of the evidence. Our

standard of review when considering a challenge to the sufficiency of the

evidence is well settled:

A claim challenging the sufficiency of the evidence presents
a question of law. We must determine “whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt.” We “must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and accept
as true all evidence and all reasonable inferences therefrom upon
which, if believed, the fact finder properly could have based its
verdict.”

Our Supreme Court has instructed: The facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding [an
appellant]’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. 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.

In addition, “the Commonwealth may sustain its burden by
means of wholly circumstantial evidence, and we must evaluate
the entire trial record and consider all evidence received against
the [Appellant].”

Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019) (en banc),

appeal denied, 216 A.3d 1036, 54 WAL 2019 (Pa. filed July 30, 2019).

Appellant was convicted of aggravated assault, simple assault, and

REAP. Those crimes are defined, in relevant part, as follows:

§ 2702. Aggravated Assault

(a) Offense defined.--A person is guilty of aggravated assault if
he:

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(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(a)(1). Serious bodily injury is bodily injury that “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.” 18 Pa.C.S. § 2301.

§ 2701. Simple Assault

a) Offense defined.--Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;

18 Pa.C.S. § 2701(a)(1).

§ 2705. Recklessly endangering another person

A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.

Our review of the record compels the conclusion that the Commonwealth

presented sufficient evidence supporting all three convictions. Appellant, who

weighed nearly twice as much as the victim, and two other men attacked the

victim from behind, forced the victim to the ground, and beat him with their

fists and kicked him over a significant period. N.T. 3/2/16, at 89–92, 211. An

eyewitness, Ms. Johns, testified at trial that she observed Appellant punching

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the helpless victim ten to fifteen times. Id. at 60–64. The victim suffered

two jaw fractures, a nasal fracture, broken ribs, a punctured lung, and a

laceration to his forehead resulting in scarring. Id. at 95, 262–263. Eleven

months after the attack, at trial, evidence of the injuries still remained: the

victim had metal plates in his mouth and could no longer eat hard foods. Id.

at 98–100. These facts were plainly sufficient to prove that Appellant inflicted

or intended to inflict serious bodily injury on the victim. See, e.g.,

Commonwealth v. Kinney, 157 A.3d 968, 973 (Pa. Super. 2017) (finding

that four chipped teeth, loss of consciousness, and bruising and swelling to

the head from repeated kicking and punching was sufficient evidence of

serious bodily injury). Appellant not only caused serious bodily injury, his

actions also demonstrated the required mens rea for aggravated assault,

given the severity of the injuries, prolonged length of the attack, Appellant’s

significant size compared to the victim, and the fact that he joined with two

other individuals to commit the assault. See Commonwealth v. Glover,

449 A.2d 662, 665–666 (Pa. Super. 1982) (finding that three men repeatedly

hitting and kicking the victim in the head was sufficient to support a finding of

intent to inflict serious bodily injury); Commonwealth v. Alexander, 383

A.2d 887, 889 (Pa. 1978) (disproportionate size difference between the

defendant and the victim relevant to support a finding of intent).

The evidence was sufficient to prove that Appellant caused the victim

serious bodily injury by repeatedly kicking and punching him in the head and

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body. 18 Pa.C.S. §§ 2701(a)(1), 2701, 2705. Thus, Appellant’s claims

regarding the sufficiency of the evidence lack merit.

Next, Appellant asserts the jury’s verdict was against the weight of the

evidence. Anders Brief at 12.

The standard in reviewing a weight-of-the-evidence claim is well settled:

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 a trial
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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted).

Initially, we note two concerns. First, other than a paragraph in the

brief setting forth the standards regarding a weight claim, Appellant presents

merely two general sentences in support of the issue. Anders Brief at 12.

Moreover, the threshold question for this Court is whether Appellant’s weight

issue has been preserved. Pennsylvania Rule of Criminal Procedure 607

governs challenges to the weight of the evidence and provides, in relevant

part, as follows:

(A) 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:

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(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).

In his brief on appeal, Appellant purports to challenge the weight of the

evidence underlying all of his convictions. In his post-sentence motion,

however, Appellant presented only a boilerplate challenge: “The weight of the

evidence presented by the Commonwealth was insufficient to sustain a verdict

of guilty as to any of the charges. The testimony of the Commonwealth’s

witnesses was incredible and uncorroborated by any credible and/or unbiased

evidence.” Post Sentence Motion, 12/26/18, at ¶ 3. It has long been the law

in Pennsylvania that a boilerplate post-sentence motion merely stating that

the verdict was against the weight of the evidence preserves no issue for

appellate review unless the motion specifies in what way the verdict was

against the weight of the evidence. Commonwealth v. Holmes, 461 A.2d

1268, 1270 (Pa. Super. 1983). The statement identified above failed to

present a clear claim to the trial court and is waived.

Even if not waived, the issue lacks merit. The trial court denied relief to

Appellant on his weight claim. Order, 1/8/19. Although we do not have the

benefit of an opinion providing the court’s reasoning, the record reveals the

following. Much of the evidence at trial consisted of the testimony of the

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victim, law enforcement officers, and a witness who observed the beating. We

agree with counsel that a “review of the trial transcript, along with exhibits

presented by the Commonwealth at trial, including [Appellant’s] medical

records, and police body-worn camera video and audio, does not demonstrate

that the jury’s verdict . . . was in any way shocking.” Anders Brief at 12.

Thus, Appellant would not be entitled to relief on this claim.

Finally, Appellant complains that his sentence was an abuse of

discretion, which presents a challenge to discretionary aspects of sentence. It

is well settled that “[t]he right to appellate review of the discretionary aspects

of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127,

132 (Pa. Super. 2014). When an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for allowance

of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)):

An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine:
(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. 708; (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

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from is not appropriate under the Sentencing Code,
42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170. Whether a particular issue constitutes a substantial

question about the appropriateness of a sentence is a question to be evaluated

on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811

(Pa. Super. 2001).

As noted, Appellant filed both a timely post-sentence motion and a

notice of appeal. In his motion, Appellant alleged that the trial court applied

the Sentencing Guidelines erroneously. Post Sentence Motion, 12/26/18, at

¶ 5. Appellant has not included a statement raising this issue in his brief

pursuant to Rule 2119(f). However:

[i]n the non-Anders context, the defendant must “preserve the
issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and
a Pa.R.A.P. 2119(f) statement.” Id. Where counsel files an
Anders brief, this Court has reviewed the matter even absent a
separate Pa.R.A.P. 2119(f) statement. See Commonwealth v.
Wilson, 396 Pa. Super. 296, 578 A.2d 523 (1990); see also
Commonwealth v. Lilley, 978 A.2d 995 (Pa. Super. 2009).
Hence, we do not consider counsel’s failure to submit a Rule
2119(f) statement as precluding review of whether Appellant’s
issue is frivolous.

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015); see also

Commonwealth v. Bynum-Hamilton, 135 A.3d 179 (Pa. Super 2016) (the

appellant’s failure to file a separate Rule 2119 statement where counsel has

sought to withdraw does not preclude review of whether the appellant’s issue

is frivolous). Thus, we consider whether Appellant has raised a substantial

question.

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Appellant is unable to raise a substantial question that his sentence is

inappropriate under the Sentencing Guidelines. While he asserted in his post-

sentence motion that the trial court applied the guidelines erroneously, he did

not explain where or how that is so. Thus, Appellant’s post-sentence motion

failed to specify what circumstances warranted a shorter sentence. See

Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super. 2007)

(general assertions that a sentence is “unreasonable” or “excessive” do not

establish a substantial question.) In short, counsel is unable to present a non-

frivolous discretionary sentencing claim because Appellant’s post-sentence

motion failed to state why or what underlying circumstances rendered the

sentence unreasonable.

Appellant’s prior record score was RFEL,3 and the offense gravity score

for aggravated assault was eleven. N.T., 12/14/18, at 12. Thus, the minimum

sentence under the sentencing-guideline range for his aggravated assault

conviction was eighty-four to 102 months of incarceration, plus or minus

twelve months. Id. The trial court sentenced Appellant to seven to fourteen

years of imprisonment for aggravated assault, with no further penalty for

REAP and simple assault. Id. at 28. In addition, the court granted credit for

time served, including the time Appellant was held at Norristown State

Hospital between his trial and sentencing. Id. at 14. As the Commonwealth

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3 RFEL is a designation in 204 Pa.Code § 303.4 of a repeat felony offender.
Commonwealth v. Johnson, 125 A.3d 822, 825 (Pa. Super. 2015).

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points out, “Because the court sentenced [Appellant] to the minimum period

of the standard range of the guidelines and granted him credit for the entirety

of his time in custody since his arrest, it did not violate any provision of the

Sentencing Code or upend any fundamental norms underlying the sentencing

process.” Commonwealth’s Brief at 8.

At the sentencing hearing, the trial court noted its close examination of

the PSI report and all of the other reports that had been submitted to it,

including those that documented Appellant’s “progress since the trial

happened.” N.T., 12/14/18, at 25. “We have repeatedly held that where a

sentencing court has the benefit of a PSI, the court is presumed to have

weighed all relevant information regarding the defendant’s character against

any mitigating factors.” Commonwealth v. Mulkin, 228 A.3d 913, 917 (Pa.

Super. 2020) (citing Moury, 992 A.2d 162).

We conclude that Appellant cannot show a violation of the Sentencing

Code or a particular fundamental norm underlying the sentencing process.

Accordingly, we agree with counsel that this discretionary sentencing claim

presented in the Anders brief is wholly frivolous. Thus, any challenge to the

court’s sentencing decision is both unreviewable and meritless.

Finally, we have independently reviewed the record in order to

determine if counsel’s assessment about the frivolous nature of the present

appeal is correct. Yorgey, 188 A.3d at 1195. After review of the issues raised

by counsel and our independent review of the record, we conclude that an

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appeal in this matter is frivolous. Accordingly, we grant counsel’s petition to

withdraw and affirm the judgment of sentence.

Petition to withdraw of Jason C. Kadish, Esquire, granted. Judgment of

sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/20

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