Com. v. Ellis, S.

J-S24045-20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SYLVESTER ELLIS, :
:
Appellant : No. 2859 EDA 2018

Appeal from the Judgment of Sentence Entered August 24, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009966-2016

BEFORE: BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED: DECEMBER 29, 2020

Sylvester Ellis (Appellant) appeals from the judgment of sentence

entered following a non-jury trial where he was convicted of aggravated

assault, simple assault, recklessly endangering another person (REAP),

possession of an instrument of crime (PIC), person not to possess a firearm,

carrying a firearm without a license, and carrying a firearm on a public street

of Philadelphia. Appellant’s 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). Upon review, we

affirm the judgment of sentence and grant counsel’s petition to withdraw.

We provide the following background. In October 2016, Appellant was

dating Rita Hill. On October 9, 2016, Hill’s ex-boyfriend, Phineas Jordan,

drove to visit her at her home. While Jordan was walking toward Hill’s

* Retired Senior Judge assigned to the Superior Court.
J-S24045-20

house, he saw Appellant drive by in Hill’s car. Appellant returned a short

time later while Jordan and Hill were conversing outside. Appellant walked

toward Jordan and Hill, stopping approximately 10 feet away, and said to

Hill, “Let’s go.” N.T., 4/6/2018, at 24. Jordan said that he wanted to talk to

Hill, and Appellant replied, “She’s no longer your business.” Id. At that

point, Appellant pulled a hooded mask up from around his neck to cover his

mouth and nose, put on clear latex gloves, and pulled a .45-caliber Colt

handgun from his pocket. Appellant approached Jordan, but Hill stepped in

between them. Appellant told Hill to move out of the way. Hill did not move,

so Appellant reached over Hill to strike Jordan in the head with the barrel of

the firearm three times, causing Jordan to fall.

While Jordan was on the ground, Appellant leaned over him and aimed

the firearm at Jordan’s stomach. Jordan grabbed the barrel of the firearm.

As Appellant and Jordan struggled over the firearm, it misfired, but the shot

did not strike anyone. Jordan and Appellant proceeded to struggle over the

firearm for several minutes. Hill’s mother, who was inside Hill’s house, called

911 to report the gunshot. As police officers arrived at the scene, Appellant

let go of the firearm, pulled the mask down around his neck again, and

dropped his latex gloves onto the street.

Officers Joseph Cosgrove and Paul Montoya observed Appellant

backing away from Jordan as Jordan held the firearm by its barrel. The

officers commanded Jordan to drop the firearm, and Jordan complied. Jordan

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was bleeding from his head and was visibly scared. Appellant was placed

under arrest and taken into custody. Police recovered the firearm and latex

gloves. Based on the foregoing, Appellant was charged with the

aforementioned crimes, plus one count of receiving stolen property and one

count of altering or obliterating marks of identification on a firearm.

On April 6, 2018, Appellant proceeded to a non-jury trial where the

above facts were developed. Appellant testified on his own behalf, admitting

that he fought with Jordan, but stating that the firearm belonged to Jordan,

and Jordan shoved, punched, and pointed the firearm at Appellant. He

stated that he put on clear latex gloves before approaching Jordan “just in

case [Appellant and Jordan were] going to start fighting.” N.T., 4/6/2018, at

106. On cross-examination, Appellant was confronted with statements he

made during a phone call while incarcerated, wherein he said, “I pistol

whipped this guy.” Id. at 118-19. Appellant acknowledged making the

statement, but denied hitting Jordan with the firearm. Id. The trial court

found Appellant guilty as indicated above.1

On August 24, 2018, the trial court sentenced Appellant to consecutive

terms of incarceration of five to ten years for person not to possess a

firearm and one to four years for aggravated assault. No further penalty was

1 With regard to the two additional counts, the Commonwealth moved to
nolle prosse the receiving stolen property charge and the trial court found
Appellant not guilty of altering or obliterating marks of identification on a
firearm.

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imposed for the remaining convictions. On August 30, 2018, Appellant filed a

post-sentence motion for a new trial and motion for reconsideration of his

sentence. The trial court denied his motions by order filed September 7,

2018. Appellant’s trial counsel filed a motion to withdraw as counsel, which

the trial court granted on September 14, 2018.

Appellant pro se timely filed the instant notice of appeal. On

September 27, 2018, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Before responding to the trial court’s order, Appellant requested the

appointment of appellate counsel. The trial court granted Appellant’s request

and appointed counsel on October 18, 2018. On March 26, 2019, in lieu of a

concise statement of errors, Appellant’s counsel filed a statement of intent to

file an Anders brief. See Pa.R.A.P. 1925(c)(4). On April 3, 2019, the trial

court filed an opinion, but did not address the merits of any potential claims

in light of counsel’s intent to file an Anders brief. Trial Court Opinion,

4/3/2019, at 2.

Appellant’s counsel filed an Anders brief and petition to withdraw in

this Court. Appellant pro se filed a response, which he amended twice with

leave of this Court.2 Appellant also filed a Rule 1925(b) concise statement

with leave of this Court, and the trial court issued a supplemental opinion.

2
Appellant pro se filed multiple applications for relief in this Court. On June
18, 2019, this Court entered an order remanding to the trial court to allow
(Footnote Continued Next Page)

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Because counsel filed an Anders brief and an application to withdraw,

the following principles guide our review of this matter.

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 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 any
additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
(Footnote Continued) _______________________

Appellant to file pro se a Rule 1925(b) statement and for the trial court to
file a supplemental Rule 1925(a) opinion in response to that statement. On
August 1, 2019, the trial court filed a supplemental opinion stating Appellant
had failed to file timely a Rule 1925(b) statement. Appellant pro se filed a
Rule 1925(b) statement four days later. On September 30, 2019, this Court
remanded to the trial court to file a supplemental opinion addressing the
merits of the claims raised in Appellant’s untimely-filed Rule 1925(b)
statement. The trial court filed a second supplemental opinion on December
30, 2019.

In the meantime, Appellant filed multiple motions for relief in this
Court. On December 3, 2019, this Court granted Appellant 30 days from the
trial court’s filing of its second supplemental opinion to respond. On January
2, 2019, Appellant filed pro se a response to counsel’s Anders brief.
Nonetheless, throughout December of 2019 and January of 2020, Appellant
continued to file multiple applications for relief, which this Court denied on
January 17, 2020. Appellant filed further applications for relief in late March
and April of 2020. On April 21, 2020, this Court accepted Appellant’s filed
responses and denied Appellant’s applications for relief.

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own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm …. However, if there are non-frivolous issues, we will deny
the petition and remand for the filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations and unnecessary capitalization omitted). Our Supreme Court has

clarified portions of the Anders procedure as follows.

[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.

Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied substantially with the

technical requirements set forth above. Generally, when counsel files an

Anders brief, this Court must conduct “a simple review of the record to

ascertain if there appear on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.” Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc). However,

because Appellant filed pro se responses to the Anders brief, our

independent review is limited to those issues raised in the Anders brief.

Commonwealth v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015). “We

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then review the subsequent pro se [] filing as we do any advocate’s brief.”

Id.

Thus, we begin our review with the Anders brief. We summarize the

issues presented as follows.

(1) Whether the trial court erred in admitting the prison call into
evidence.

(2) Whether the Commonwealth’s closing argument constituted
prosecutorial misconduct.

(3) Whether Appellant’s sentence was excessive and the trial court
failed to consider mitigating factors.

(4) Whether the evidence was sufficient to sustain Appellant’s
convictions for PIC, person not to possess a firearm, carrying a
firearm without a license, and carrying a firearm on a public street
of Philadelphia.

(5) Whether the evidence was sufficient to sustain Appellant’s
conviction of aggravated assault when he was acting in self-
defense.

(6) Whether the verdicts were against the weight of the evidence.

See Anders Brief at 17-28.

Counsel’s first claim addresses the admission of the prison calls into

evidence at trial. Id. at 25. “The trial court has discretion over the

admissibility of evidence, and we will not disturb such rulings on appeal

absent evidence the court abused its discretion.” Commonwealth v.

Akhmedov, 216 A.3d 307, 316 (Pa. Super. 2019). To preserve an

evidentiary issue for appellate review, an appellant must timely object at

trial. Pa.R.E. 103(a)(1)(B).

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At trial, Appellant’s counsel stipulated to the transcriptions of the calls

and did not object to the Commonwealth’s moving the transcripts into

evidence. N.T., 4/6/2018, at 96-98. Thus, Appellant has waived any

challenge to their admission by failing to object. See Commonwealth v.

Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (stating that a party must

make a timely and specific objection to preserve an issue for appellate

review). Where an issue has been waived, pursuing the matter on direct

appeal is frivolous under Anders. Commonwealth v. Kalichak, 943 A.3d

285, 291 (Pa. Super. 2008). Accordingly, we agree with counsel that issue

one is frivolous.

Counsel’s second claim of arguable merit alleges that the

Commonwealth attacked Appellant’s credibility during its closing argument

and, in so doing, engaged in prosecutorial misconduct. Anders Brief at 26.

“In reviewing claims of improper prosecutorial comments, our standard of

review is whether the trial court abused its discretion.” Commonwealth v.

Jones, 181 A.3d 830, 835 (Pa. Super. 2018). In a non-jury trial, “it is

presumed that a trial court, sitting as fact-finder, can and will disregard

prejudicial evidence.” Commonwealth v. Fears, 86 A.3d 795, 819 (Pa.

2014) (citation omitted).

In order to preserve a claim of prosecutorial misconduct for appellate

review, a defendant must timely object at trial and request a remedy. See

Commonwealth v. Jones, 191 A.3d 830, 836 (Pa. Super. 2018) (finding

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waiver where a defendant objected to the prosecutor’s statements at trial,

but failed to request a remedy such as mistrial or a curative instruction).

Appellant did neither. See N.T., 4/6/2018, at 129-33. As discussed supra,

pursuing a waived claim is frivolous under Anders. See Kalichak, 943 A.3d

at 291. Accordingly, we agree with counsel that Appellant’s claim of

prosecutorial misconduct is frivolous.3

Next, we consider the claim that the trial court imposed an excessive

sentence and failed to consider mitigating factors in imposing Appellant’s

sentence. Anders Brief at 27. Because this issue involves a challenge to the

discretionary aspects of Appellant’s sentence, we bear in mind the following.

An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether an
appellant has invoked our jurisdiction by considering the
following four factors:

(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, 42 Pa.C.S.[] § 9781(b).

3
We note that even if not waived, a review of the record belies this claim.
The Commonwealth does not discuss Appellant’s credibility; indeed, it is the
trial court that stated it found Appellant’s “version of events entirely
incredible.” N.T., 4/6/2018, at 133.

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Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019)

(quoting Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super.

2014)).

Here, Appellant has satisfied the first three requirements and raised a

substantial question. See Commonwealth v. Caldwell, 117 A.3d 763, 770

(Pa. Super. 2015) (“This Court has ... held that an excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question.”). Accordingly, we may

reach the merits of this claim, mindful of the following.

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). When a

sentence is within the sentencing guidelines, we will disturb the trial court’s

sentence only if “the case involves circumstances where the application of

the guidelines would be clearly unreasonable.” 42 Pa.C.S. § 9781.

Preliminarily, Appellant’s sentences for both person not to possess a

firearm and aggravated assault were in the mitigated range of the

sentencing guidelines. N.T., 8/24/2018, at 5-6. Moreover, in placing its

reasons for imposing Appellant’s sentence on the record, the trial court

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specifically took into consideration Appellant’s family support, his veteran

status, his cooperation with the prosecution in another matter, and his

waiver of a jury trial. N.T., 8/24/2018, 29-32. Finally, in imposing

Appellant’s sentence, the trial court had the benefit of a presentence

investigation report (PSI). Where the trial court has a PSI report, “we can

assume the sentencing court ‘was aware of relevant information regarding

defendant’s character and weighed those considerations along with

mitigating statutory factors.’” Commonwealth v. Moury, 992 A.2d 162,

171 (Pa. Super. 2010) (internal citation omitted). Because the trial court did

not fail to consider mitigating factors in fashioning Appellant’s mitigated-

range sentences, we agree with counsel that a challenge to the discretionary

aspects of Appellant’s sentence is frivolous.

Counsel’s fourth and fifth claims challenge the sufficiency of the

evidence supporting Appellant’s firearm-related and aggravated assault

convictions. When reviewing a challenge to the sufficiency of the evidence,

we must determine whether the evidence admitted at trial, as
well as all reasonable inferences drawn therefrom, when viewed
in the light most favorable to the verdict winner, are sufficient to
support all elements of the offense. Commonwealth v.
Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may
not reweigh the evidence and substitute our judgment for that of
the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa.
Super. 2009). The evidence may be entirely circumstantial as
long as it links the accused to the crime beyond a reasonable
doubt. Moreno, [14 A.3d] at 136.

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Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011). “When

evaluating the credibility and weight of the evidence, the fact-finder is free

to believe all, part, or none of the evidence.” Commonwealth v. Carr, 227

A.3d 11, 19 (Pa. Super. 2020).

The first sufficiency claim contends that the Commonwealth did not

prove Appellant possessed, carried, or used the firearm recovered at the

scene, thereby rendering his firearm-related convictions infirm.4 Anders

Brief at 17. To prove Appellant’s possession, the Commonwealth called

Jordan, who testified that Appellant had a firearm in his pocket when he

approached Jordan, took the firearm out of his pocket and struck Jordan’s

head with it, and pointed the firearm at Jordan. N.T., 4/6/2018, at 25-27.

The trial court credited Jordan’s testimony. Id. at 133. In addition,

photographs of Jordan’s injuries and a phone-call transcript of Appellant

saying, “I pistol whipped the guy,” were admitted into evidence. Id. at 35,

97-98, 117-18.

Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, there was sufficient evidence to prove Appellant

possessed and carried the firearm to support his firearm-related convictions.

4 See 18 Pa.C.S. § 6105(a)(1) (requiring proof that defendant “possess[ed],
use[d], or control[led]” a firearm); 18 Pa.C.S. § 6106(a)(1) (requiring proof
that defendant carried a firearm “concealed on or about his person, except in
his place of abode or fixed place of business”); 18 Pa.C.S. § 6108 (requiring
proof that defendant carried a firearm on a public street); 18 Pa.C.S. §
907(a) (requiring proof that defendant “possesse[d] any instrument of crime
with intent to employ it criminally”).

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See Commonwealth v. Robinson, 817 A.2d 1153, 1161-62 (Pa. Super.

2003) (holding that eyewitness testimony alone is sufficient to establish

possession in firearms convictions). Accordingly, we agree with counsel that

this claim is frivolous.

Next, we address the claim that the evidence was insufficient to prove

aggravated assault because the Commonwealth failed to disprove

Appellant’s claim of self-defense.5 “If a defendant introduces evidence of

self-defense, the Commonwealth bears the burden of disproving the self-

defense claim beyond a reasonable doubt.” Commonwealth v. Houser, 18

A.3d 1128, 1135 (Pa. 2011).

“The Commonwealth sustains this burden if it establishes at least
one of the following: 1) the accused did not reasonably believe
that he was in danger of death or serious bodily injury; or 2) the
accused provoked or continued the use of force; or 3) the
accused had a duty to retreat and the retreat was possible with
complete safety.”

Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005)

(internal quotation marks and citation omitted).

The trial court found Jordan’s testimony that Appellant initiated the

altercation credible. N.T., 4/6/2018, at 25, 133. Contrary to Appellant’s

version of events, Jordan testified it was Hill, not Appellant, who attempted

to prevent an altercation, and when Hill tried to block Appellant from

5 Appellant was convicted of aggravated assault under subsection (a)(4),
wherein the Commonwealth had to prove that Appellant “attempt[ed] to
cause or intentionally or knowingly cause[d] bodily injury to another with a
deadly weapon.” 18 Pa.C.S. § 2702(a)(4).

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approaching Jordan, Appellant told her to move out of the way and reached

over her head to strike Jordan. Id. at 25-26. Appellant testified that prior to

walking over to Jordan and Hill, he put on gloves so that he would not be

exposed to blood “just in case we was going to start fighting.” Id. at 106.

Viewed in the light most favorable to the Commonwealth, there was

sufficient evidence establishing that Appellant provoked the fight. Therefore,

the Commonwealth met its burden of disproving Appellant’s self-defense

claim. Based on the foregoing, we agree with counsel that Appellant’s claim

is frivolous.

The final claim raised by counsel asserts that the verdicts were against

the weight of the evidence. Anders Brief at 22-23. Because all of Appellant’s

convictions were predicated on the Commonwealth’s evidence that Appellant

instigated the altercation by using the firearm, this claim challenges each

verdict based on the argument that such evidence was contradictory, vague,

and convoluted. Id. Our standard of review when examining a challenge to

the weight of the evidence is as follows.

An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. ... [T]he role of the trial judge
is to determine that notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or give them
equal weight with all the facts is to deny justice.

An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard

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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.

Commonwealth v. Weir, 201 A.3d 163, 168 (Pa. Super. 2018) (citations

omitted).

Specifically, counsel presents the argument that the trial court abused

its discretion in crediting Jordan’s testimony over that of Appellant. Anders

Brief at 24-25. Here, the trial court found that “[t]he evidence presented at

trial established beyond a reasonable doubt that [A]ppellant physically

confronted [Jordan] because he was upset that [Jordan] had been speaking

with []Hill.” Trial Court Opinion, 12/30/2019, at 8. “[A]ppellant had a

concealed gun in his pocket when he initially approached [Jordan].

Appellant’s subsequent actions clearly demonstrated his intention to use that

gun criminally. ... Appellant put on a mask, pulled out his gun and then

pistol whipped [Jordan].” Id. at 10. Based on its finding that “the testimony

of [Jordan] and [the] police [was] credible and ... corroborated by

[A]ppellant’s inculpatory statement,” id. at 8, the trial court “rejected

[A]ppellant’s assertion that [Jordan] was the person that actually possessed

the gun during the altercation.” Id. at 11. Thus, the trial court determined

that Appellant’s weight claim has no merit. Id. at 7; See Commonwealth

v. Matthews, 2020 WL 7047114 (Pa. Super. 2020) (unpublished

memorandum) (Strassburger, J. concurring) (“[I]t would be highly

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incongruous for a trial judge presiding over a non-jury trial to find her own

decision shocks her conscience.”).

When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review. ... [I]t is well settled that the
Court cannot substitute its judgment for that of the trier of fact.

Commonwealth. v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted).

Appellant’s claim asks this Court to reweigh the evidence in Appellant’s

favor, substituting our judgment for that of the trial court. Although

Appellant’s testimony contradicted much of the Commonwealth’s evidence,

see N.T., 4/6/2018, at 113, the Commonwealth’s evidence was not

unreliable. Indeed, as the trial court observed, the evidence that Appellant

pistol-whipped Jordan was corroborated by Appellant’s statement on a

recorded phone call. Id. at 117; Trial Court Opinion, 12/30/2019, at 8. As

such, we will not disturb the trial court’s credibility determinations.

Accordingly, we agree with counsel that the claim that the trial court abused

its discretion in denying Appellant’s weight-of-the-evidence motion is wholly

frivolous.

Our review of the claims presented by counsel has revealed no non-

frivolous issues. As a result, we turn now to the remaining arguments

Appellant puts forth in his pro se filings. See Bennett, 124 A.3d at 333. In

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his responses, Appellant presents additional arguments in support of the

sufficiency-of-the-evidence claims based on lack of possession of the firearm

and self-defense, which counsel raised in his Anders brief and we have

discussed in detail, supra. Upon review of Appellant’s additional arguments,

we still agree with counsel that these claims are frivolous. Accordingly, we

turn our review to the new issues Appellant has raised.

Appellant presents the following new issues in his reply to counsel’s

Anders brief.

1. Whether the evidence is insufficient as a matter of law to
find [A]ppellant guilty of aggravated assault (F2), [PIC]
(M1), and [REAP] (M2)?[6]

2. Whether the trial [c]ourt erred by convicting [A]ppellant of
aggravated assault (F2), when the Commonwealth solely
prosecuted [A]ppellant on aggravated assault (F1)?

3. Whether the trial [c]ourt erred by convicting [A]ppellant of
lesser included offenses which should have merged into
higher offenses?

4. Whether defense counsel[’s] representation constitutes
ineffective[] assistance of counsel under exceptional
circumstances?

Appellant’s Amended Reply to Counsel’s Anders Brief, 3/17/2020, at 2-3

(redundant claims omitted and numbering altered).7

6 Appellant puts forth new bases in support of these claims.

7In his April 6, 2020 filing, Appellant also claims that “the trial court erred
by misinterpreting” the phone call Appellant made while in prison.
Appellant’s Response to Trial Court Opinion, 4/6/2020, at 12. Appellant has
(Footnote Continued Next Page)

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We turn first to Appellant’s new sufficiency claims. First, Appellant

contends that the firearm was not a deadly weapon, and, as such, the

evidence was insufficient to sustain his aggravated assault conviction

because the Commonwealth had to prove he caused Jordan’s injuries with a

deadly weapon. Appellant’s Response to Trial Court Opinion, 4/6/2020, at 5.

Because deadly weapons include “any firearm, whether loaded or

unloaded[,]” 18 Pa.C.S. § 2301, and the .45-caliber Colt handgun was

unquestionably a firearm, Appellant’s argument is without merit.

Second, Appellant contends that, even if this Court accepts the trial

court’s finding that Appellant hit Jordan with the firearm, there was

insufficient evidence to show he was acting with the requisite intent to prove

aggravated assault. Id. at 5-6. Specifically, he argues he did not intend to

cause bodily injury and that evidence failed to show “the blows were of [a]

vicious[] nature.” Appellant’s Amended Reply to Counsel’s Anders Brief,

3/17/2020, at 16. At trial, Jordan testified that Appellant hit him three times

with a full swinging motion of Appellant’s arm, striking Jordan’s head with

the barrel of the firearm. N.T., 4/6/2018, at 27. Photographs admitted at

trial showed Jordan’s head injuries, and Officer Montoya testified Jordan was

bleeding from the head when he arrived on scene. Id. at 35, 78. Moreover,

Jordan testified that after Appellant hit him, Appellant aimed a loaded

(Footnote Continued) _______________________

not demonstrated how this is a legally cognizable claim. Accordingly, it is
wholly frivolous.

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firearm at Jordan’s stomach. Id. at 29. Therefore, when viewed in the light

most favorable to the Commonwealth, the Commonwealth presented

sufficient evidence to show Appellant intended to cause Jordan bodily injury.

Appellant challenges his PIC conviction in his final sufficiency claim.

Appellant argues that, even if the evidence were sufficient to show he

possessed the firearm, the Commonwealth failed to prove that the firearm

was an instrument of crime. Appellant’s Amended Reply to Counsel’s Anders

Brief, 3/17/2020, at 17. An “instrument of crime” is “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. § 907(d)(2).

The evidence that established Appellant possessed the firearm—namely, that

Appellant used the firearm to strike Jordan—also demonstrated that the

firearm was being used as an instrument of crime. See N.T., 4/6/2019, at

25-36, 35, 106. Accordingly, the claim that there was insufficient evidence

to convict Appellant of PIC is wholly frivolous.

Appellant next argues that his sentence for aggravated assault, graded

as a second-degree felony, is illegal because he was charged only with

aggravated assault as a first-degree felony. Appellant’s Amended Reply to

Counsel’s Anders Brief, 3/17/2020, at 32. Appellant raises this claim for the

first time on appeal, but he argues that his claim is non-waivable because it

implicates the legality of his sentence or, in the alternative, the subject

matter jurisdiction of the trial court. Id. at 19, 32.

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First, we address Appellant’s argument that he has raised a legality-of-

sentence issue. Appellant’s claim challenges his underlying conviction, not

his subsequent sentence, and, as such, it does not implicate the legality of

his sentence. See Commonwealth v. Spruill, 80 A.3d 453, 460-63 (Pa.

2013) (holding that appellant’s challenge to her conviction for aggravated

assault graded as a second-degree felony on the basis that she was charged

only with aggravated assault graded as a first-degree felony was not a non-

waivable illegality-of-sentencing claim).

Alternatively, Appellant frames this claim as implicating the subject

matter jurisdiction of the trial court, which is a non-waivable claim.

Appellant’s Amended Reply to Counsel’s Anders Brief, 3/17/2020, at 32;

Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). Specifically,

Appellant contends that he had no notice of the second-degree felony

charge. Appellant’s Amended Reply to Counsel’s Anders Brief, 3/17/2020,

at 18-20, 32-33. Formal notice is given when “the Commonwealth

confront[s] the defendant with formal and specific accusation of the crimes

charged. This accusation enables the defendant to prepare any defenses

available to him[.]” Commonwealth v. Little, 314 A.2d 260, 273-74 (Pa.

1974). “Failure to include the specific acts constituting an offense is a

procedural requirement that does not divest a trial court of subject-matter

jurisdiction.” Jones, 929 A.2d at 212.

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Initially, we note that the information filed in this case designated that

the Commonwealth was charging Appellant with aggravated assault as a

felony of the first degree, but it listed the elements of aggravated assault as

a felony of the second degree. Information, 11/2/2016, at 1; 18 Pa.C.S.

§ 2701. In addition, the following exchange took place at the conclusion of

Appellant’s trial.

THE COURT: Let me ask you a question about something that
maybe I’m a little confused about, and I want to ask both
counsel about this. There’s an aggravated assault charge here,
an F-1 aggravated assault charge. I assume that-- and tell me if
I’m incorrect[--] that the F-1 aggravated assault comes from the
discharge of the weapon.

[COMMONWEALTH]: That would be the Commonwealth’s
position, Your Honor.

[DEFENSE COUNSEL]: That’s my understanding.

THE COURT: That’s my understanding also. Suppose the
evidence leaves a reasonable doubt in this fact finder’s mind
about exactly during the course of this struggle how the gun got
discharged, and suppose there’s a reasonable doubt in my mind
about whether or not the gun, regardless of the fact that I find it
was in [Appellant’s] hands, [], suppose I can find or I don’t find
beyond a reasonable doubt that during the struggle he
intentionally pulled the trigger to have the gun fire, what are the
legal consequences of that with regard to the aggravated assault
charge?

[DEFENSE COUNSEL]: To be intellectually honest[], which I
always am, it would lead to either simple and the VUFA or you
can conclude that it’s still an F-2...

THE COURT: Right. The aggravated assault would then have to
rest on the pistol whipping.

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[DEFENSE COUNSEL]: That’s if you believe he possessed the gun
beyond a reasonable doubt.

N.T., 4/6/2018, at 128-29.

Appellant avers that prosecuting him on the second-degree felony

charge “impos[ed] a new and unforeseeable burden upon [A]ppellant[’s]

defense.” Appellant’s Amended Reply to Counsel’s Anders Brief, 3/17/2020,

at 19. The record shows the opposite; the prospect of a lower-severity

conviction was a defense strategy. Because the elements of aggravated

assault as a felony of the second degree were listed on the information and

Appellant had prepared a defense strategy in accordance with the charge,

the trial court had subject matter jurisdiction to convict Appellant of

aggravated assault as a felony of the second degree. See Jones, 929 A.2d

at 212.

Based on the foregoing, we do not agree with Appellant that his claim

challenging his conviction for aggravated assault graded as a felony of the

second degree is non-waivable. Thus, we find he has waived it by failing to

preserve it before the trial court. See Kalichak, 943 A.3d at 291 (holding

that where an issue has been waived, pursuing the matter on direct appeal

is frivolous under Anders). Accordingly, Appellant’s claim is frivolous.

Next, Appellant claims that his convictions for simple assault and REAP

should have merged for sentencing purposes with his conviction for

aggravated assault. Appellant’s Response to Trial Court Opinion, 4/6/2020,

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at 7. Appellant received a sentence of “a determination of guilty without

further penalty” for both his simple assault and REAP conviction. In its

opinion, the trial court does not analyze whether Appellant’s convictions

should have merged because it erroneously concluded that the convictions

were merged on the basis that no further penalty was imposed. Trial Court

Opinion, 12/30/2019 at 14; see Commonwealth v. Farrow, 168 A.3d 207

(Pa. Super. 2017) (holding that “guilty without further penalty” is a sentence

and, as such, convictions are not merged where such a sentence is

imposed).8

We consider whether offenses merge for sentencing purposes

based on section 9765 of the Sentencing Code.

No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.

42 Pa.C.S. § 9765.

When considering whether there is a single criminal act or
multiple criminal acts, the question is not whether there was a
break in the chain of criminal activity. The issue is whether the
actor commits multiple criminal acts beyond that which is
necessary to establish the bare elements of the additional crime,
then the actor will be guilty of multiple crimes which do not
merge for sentencing purposes.

8 In Commonwealth v. Hill, our Supreme Court disapproved of some of
our analysis in Farrow, however it did not address the question of whether
a “determination of guilty without further penalty” constitutes punishment
for purposes of a double jeopardy analysis. 238 A.3d 399, 410 (Pa. 2020).

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Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012)

(quotations and citations omitted).

With regard to his REAP conviction, Appellant’s claim fails both

elements of section 9765’s merger test. To prove aggravated assault, the

Commonwealth had to show that Appellant “attempt[ed] to cause or

intentionally or knowingly cause[d] bodily injury to another.” 18 Pa.C.S.

§ 2702(a)(4). REAP, by contrast, requires proof that another person was

placed in danger of death or serious bodily injury. 18 Pa.C.S. § 2705. Thus,

all of the elements of REAP are not included in the elements of aggravated

assault. See Commonwealth v. Cianci, 130 A.3d 780, 782-83 (Pa. Super.

2015) (holding aggravated assault pursuant to section 2702(a)(1), requiring

in pertinent part that a defendant attempts to cause or intentionally,

knowingly, or recklessly causes serious bodily injury to another, does not

merge with REAP because an individual could attempt to cause bodily injury

without placing a person in actual danger or, conversely, could create an

actual danger without attempting or intending to cause bodily injury).

Moreover, Appellant’s aggravated assault conviction was based on his act of

striking Jordan with the firearm. N.T., 4/6/2018, at 129. However, his REAP

conviction was based on the danger created by drawing and pointing a

loaded firearm at Jordan during their altercation on a public street. Trial

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Court Opinion, 12/30/2019, at 9-10. Accordingly, Appellant’s convictions for

REAP and aggravated assault do not merge for sentencing.

Appellant was also charged with simple assault for intentionally,

knowingly, or recklessly causing Jordan bodily injury when he wrestled

Jordan to the ground, stood over Jordan and pointed the firearm at Jordan,

charged at Jordan, and bit Jordan’s hand. See Id. at 30-32, 35-36, 106.

Because these acts were not necessary to establish the bare elements of

aggravated assault, Appellant’s conviction for simple assault does not merge

with aggravated assault for sentencing purposes. See Pettersen, 49 A.3d at

912. Accordingly, Appellant’s merger claims are frivolous.

Appellant’s final issue alleges that counsel was ineffective for failing to

(1) inform Appellant of a plea offer, (2) object to his conviction for

aggravated assault as a felony of the second degree, (3) investigate and

interview material witnesses, and (4) object to evidence at trial. Appellant’s

Amended Reply to Counsel’s Anders Brief, 3/17/2020, at 27-28. Claims of

ineffective assistance of counsel generally are not cognizable on direct

appeal and must be deferred until collateral review under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, except in limited circumstances

not present here.9 Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

9 Specifically, this court has recognized three exceptions,

(i) extraordinary circumstances where a discrete claim (or claims) of trial
counsel ineffectiveness is apparent from the record and meritorious to the
(Footnote Continued Next Page)

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2013). As such, Appellant’s ineffectiveness claims are frivolous as raised on

direct appeal.

Based on the foregoing, we agree with counsel that the claims

Appellant wishes to raise are frivolous. Moreover, we have reviewed

Appellant’s responses to counsel’s Anders brief and found that Appellant

failed to raise a non-frivolous claim. Accordingly, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/20

(Footnote Continued) _______________________

extent that immediate consideration best serves the interests of justice; (ii)
where the defendant asserts multiple ineffective[-]assistance claims, shows
good cause for direct review of those claims, and expressly waives his
entitlement to PCRA review before the trial court; and (iii) where the
defendant is statutorily precluded from obtaining subsequent PCRA review.

Commonwealth v. Rosenthal, 233 A.3d 880, 887 (Pa. Super. 2020)
(citations omitted).

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