Com. v. Harsh, M. ( 2017 )


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  • J-S05044-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MARK CHRISTIAN HARSH,
    Appellant                No. 1369 MDA 2016
    Appeal from the Judgment of Sentence April 6, 2016
    in the Court of Common Pleas of Franklin County
    Criminal Division at No.: CP-28-CR-0001080-2015
    BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                             FILED MARCH 30, 2017
    Appellant, Mark Christian Harsh, appeals from the judgment of
    sentence imposed following his jury conviction of aggravated assault 1 and
    simple assault.2 Court-appointed counsel for Appellant has filed a petition to
    withdraw from representation on the basis of frivolity, and a supporting brief
    pursuant to Anders v. California3 and Commonwealth v. Santiago.4 For
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    18 Pa.C.S.A. § 2702(a)(4).
    2
    18 Pa.C.S.A. § 2701(a)(2).
    3
    
    386 U.S. 738
    (1967).
    4
    
    978 A.2d 349
    (Pa. 2009).
    J-S05044-17
    the reasons set forth below, we grant counsel’s petition to withdraw and
    affirm Appellant’s judgment of sentence.
    We derive the following recitation of facts from the trial court’s July 26,
    2016 opinion and our independent review of the certified record.        Shortly
    after 9:00 p.m. on May 11, 2015, Appellant was playing music at such a
    volume that it reverberated in the victim’s upstairs apartment and knocked
    candles off the windowsill; it could be heard outside of the building. (See
    N.T. Trial, 2/29/16, at 37-38, 96).     The victim, Dustin Jackson, having
    unsuccessfully attempted to put his son to sleep, went downstairs to ask
    Appellant to lower the volume. (See id.). Because of prior encounters with
    Appellant, the victim took his cell phone with him to record the interaction.
    (See 
    id. at 38).
       There was no answer to initial knocks, but Appellant
    answered the victim’s subsequent, louder knocks.       (See id.)    During the
    ensuing exchange, Appellant told the victim “fuck you nigger,” spit in the
    victim’s face, and “slammed the door shut.” (Id. at 39). The victim became
    angry and kicked the door two or three times, but not with such force as to
    break or damage it. (See 
    id. at 40,
    84-85).
    As the victim turned around to leave, he saw Appellant reappear at the
    door with a hammer in his hand.       (See 
    id. at 42).
       Appellant exited his
    apartment, approached the victim, took the cell phone out of the victim’s
    hand, and smashed it with his hammer. (See 
    id. at 42,
    50). As the victim
    continued to back away, Appellant struck him with the hammer. (See 
    id. at -2-
    J-S05044-17
    42, 98). The victim raised his arm to protect his face, sustaining an injury
    to his forearm. (See 
    id. 42, 98-99).
    As a result, the victim fell backwards
    and hit his head. (See 
    id. at 44-45).
    While the victim was on the ground,
    Appellant stood over him saying, “I’m going to kill you.” (Id. at 45; see 
    id. at 46).
    Appellant’s wife yelled at him to stop, and he returned to his
    apartment. (See 
    id. at 45-46).
    The victim went to the hospital. (See 
    id. at 47).
    He sustained swelling and scraping to his left arm, causing a dent
    and continual shooting pain through his wrist, which has persisted. (See 
    id. at 47-48,
    83).
    The Commonwealth charged Appellant with aggravated assault, simple
    assault, and harassment.5 A jury convicted him of aggravated assault and
    simple assault.     On April 6, 2016, the trial court sentenced Appellant to a
    term of not less than thirty-three nor more than one hundred and twenty
    months of incarceration in a state correctional institution for the aggravated
    assault conviction.6      Appellant filed post-sentence motions for a new trial
    challenging the weight and sufficiency of the evidence and raising a Fifth
    ____________________________________________
    5
    18 Pa.C.S.A. § 2709(a)(1); the disposition of the harassment charge is not
    a subject of the instant appeal.
    6
    The conviction of simple assault merged for sentencing purposes.
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    Amendment claim, which the trial court denied on July 26, 2016. (See Trial
    Court Opinion, at 14). Appellant timely appealed.7
    On November 15, 2016, counsel for Appellant filed a motion to
    withdraw as counsel and an Anders brief. Counsel raises three issues for
    our review:
    1. Whether the Commonwealth presented sufficient
    evidence for the jury to find [Appellant] guilty of both
    aggravated assault and simple assault, beyond a
    reasonable doubt?
    2. Whether the verdict of guilty of aggravated
    assault and simple assault was against the weight of the
    evidence presented at trial?
    3. Whether [Appellant] was denied a fair trial when
    his right to remain silent was violated when he was being
    questioned by the Commonwealth’s attorney?
    (Anders Brief, at 7).
    Before addressing the merits of Appellant’s claims, we must first
    review counsel’s petition to withdraw. See Commonwealth v. Goodwin,
    
    928 A.2d 287
    , 290 (Pa. Super. 2007). If counsel seeks to withdraw under
    Anders, he 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
    ____________________________________________
    7
    On September 12, 2016, Appellant filed a timely statement of errors
    complained of on appeal, pursuant to the court’s order. The court filed an
    opinion on September 22, 2016. See Pa.R.A.P. 1925.
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    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, supra at 361.
    Counsel must also provide Appellant with a copy of the Anders brief,
    together with a letter that advises Appellant of his right to: (1) retain private
    counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise
    additional arguments that the Appellant deems worthy of the Court’s
    attention.   See Commonwealth v. Nischan, 
    928 A.2d 349
    , 353 (Pa.
    Super. 2007), appeal denied, 
    936 A.2d 40
    (Pa. 2007) (citation omitted).
    Substantial compliance with these requirements is sufficient.         See
    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) (citation omitted).
    Here, court-appointed counsel has complied with the Anders and
    Santiago requirements.      Counsel submitted a brief which summarizes the
    facts and procedural history of the case, refers to evidence of record that
    might arguably support the appeal, provides citations and relevant case law,
    and sets forth his reasoning and conclusion that the appeal is wholly
    frivolous.   (See Anders Brief, at 8-15).      Counsel has filed a petition to
    withdraw from further representation, notified Appellant of the withdrawal
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    request, 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 believes to be meritorious.    (See Letter from Jonathan C.
    Faust, Esq. to Appellant, 11/04/16).     A review of the record reveals no
    response from Appellant.    Because counsel’s petition and brief satisfy the
    requirements of Anders and Santiago, we will undertake our own review of
    the appeal to determine if it is wholly frivolous. See Palm, supra at 1246.
    The Anders brief first challenges the sufficiency of the evidence for
    Appellant’s conviction of aggravated assault and simple assault.        (See
    Anders Brief, at 7). Specifically, the brief asserts that the Commonwealth
    failed to establish that Appellant acted with the requisite intent to cause
    bodily injury with a deadly weapon, or to disprove his self-defense claim.
    (See 
    id. at 11-12).
    We disagree.
    Our standard of review for a challenge to the sufficiency of the
    evidence is well-settled.
    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
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    may sustain its burden of proving every element of the
    crime beyond a reasonable doubt by means of wholly
    circumstantial 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. Smith, 
    97 A.3d 782
    , 790 (Pa. Super. 2014) (citation
    omitted).
    A person commits the offense of aggravated assault if he “attempts to
    cause or intentionally or knowingly causes bodily injury to another with a
    deadly weapon[.]” 18 Pa.C.S.A. § 2702(a)(4). A person acts “intentionally”
    when “it is his conscious object to engage in conduct of that nature or to
    cause such a result[.]”      18 Pa.C.S.A. § 302(b)(1)(i).      A person acts
    “knowingly” when “he is aware that it is practically certain that his conduct
    will cause such a result.”   18 Pa.C.S.A. § 302(b)(2)(ii).     “Intent can be
    proven by direct or circumstantial evidence; it may be inferred from acts or
    conduct or from the attendant circumstances.” Commonwealth v. Gruff,
    
    822 A.2d 773
    , 776 (Pa. Super. 2003), appeal denied, 
    863 A.2d 1143
    (Pa.
    2004) (citation omitted).
    Appellant also claims self-defense.   (See Anders Brief, at 12).    The
    Pennsylvania Crimes Code specifies when it is justifiable to use force against
    another person in the interest of self-protection. See 18 Pa.C.S.A. § 505. A
    defendant has no burden to prove he acted in self-defense.        See Smith,
    supra at 787.      However, “[b]efore the issue of self-defense may be
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    submitted to a jury for consideration, a valid claim of self-defense must be
    made out as a matter of law, and this determination must be made by the
    trial judge.”     Commonwealth v. Mayfield, 
    585 A.2d 1069
    , 1070 (Pa.
    Super. 1991).
    The Commonwealth has the burden to prove beyond a reasonable
    doubt     that   the   defendant   was    not   acting   in    self-defense.   See
    Commonwealth v. Houser, 
    18 A.3d 1128
    , 1135 (Pa. 2011), cert. denied,
    
    565 U.S. 1247
    (2012). The Commonwealth meets its burden by establishing
    either that: “(1) the [defendant] did not reasonably believe that he was in
    danger of death or serious bodily injury; or (2) the [defendant] provoked or
    continued the use of force; or (3) the [defendant] had a duty to retreat and
    the retreat was possible with complete safety.”               Smith, supra at 787
    (citation omitted).
    A defendant claiming self-defense must have both a subjective belief
    that he was in imminent danger, and an objectively reasonable belief that
    the use of force was necessary to protect against death or serious bodily
    injury.    See 
    id. The reasonableness
    of a defendant’s belief can be
    determined by considering such factors as “whether complainant was armed,
    any actual physical contact, size and strength disparities between the
    parties, prior dealings between the parties, threatening or menacing actions
    on the part of the complainant, and general circumstances surrounding the
    incident[.]”     
    Id. at 788
    (citation omitted).   The defendant must not have
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    “used more force than reasonably necessary to protect against death or
    serious bodily injury.” 
    Id. (citation omitted).
    Finally, the defendant “must
    be free from fault in provoking or escalating the altercation that led to the
    offense[.]” 
    Id. (citation and
    emphasis omitted).
    Here,   viewing   the   evidence,   together   with   all   the   reasonable
    inferences, in the light most favorable to the Commonwealth as the verdict
    winner, we conclude that it was ample to enable the jury to conclude that
    Appellant had the requisite intent to commit aggravated assault, and that
    the Commonwealth disproved Appellant’s claim of self-defense beyond a
    reasonable doubt.
    First, Appellant used provocative language, calling the victim a racial
    epithet, spit on his face, and slammed the door shut. After kicking the door
    angrily, the victim started to walk away.      Then, Appellant, already safely
    inside his own apartment with the door closed, armed himself with a
    hammer, re-opened the door, and chased the retreating victim.             Appellant
    struck the victim with the hammer. The victim testified that Appellant then
    stood over him saying, “I’m going to kill you.” (See N.T. Trial, 2/29/16, at
    45).
    Despite Appellant’s claim that he feared for his life and the life of his
    wife, the jury, by its verdict, concluded that the Commonwealth presented
    sufficient evidence that Appellant intentionally caused bodily injury to the
    victim without justification. Appellant plainly chose to leave the safety of his
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    own apartment to pursue the retreating victim. Ultimately, the jury as fact-
    finder was not required to credit Appellant’s version of events. See Houser,
    supra at 1135 (“a jury is not required to believe the testimony of the
    defendant who raises the claim [of self-defense.]”) (citation omitted).       We
    may not reweigh the evidence and substitute our judgment for that of the
    fact-finder. See Smith, supra at 790. Accordingly, we conclude that this
    issue is without merit.
    The Anders brief also challenges the sufficiency of the evidence for
    simple assault.      (See Anders Brief, at 7).         Simple assault is a lesser-
    included offense of aggravated assault.            See Commonwealth v. Novak,
    
    564 A.2d 988
    , 989 (Pa. Super. 1989).                Because the jury’s aggravated
    assault conviction is supported by sufficient evidence, its simple assault
    verdict is also supported by sufficient evidence.         For this reason, neither
    sufficiency claim merits relief.
    In the second issue, the Anders brief asserts that the guilty verdict for
    aggravated and simple assault was contrary to the weight of the evidence. 8
    (See Anders Brief, at 7, 12-13).
    When we review a weight-of-the-evidence challenge,
    we do not actually examine the underlying question;
    instead, we examine the trial court’s exercise of discretion
    in resolving the challenge.       This type of review is
    necessitated by the fact that the trial judge heard and saw
    ____________________________________________
    8
    Appellant preserved this claim by raising it with the trial court in a post-
    sentence motion. See Pa.R.Crim.P. 607(A)(3).
    - 10 -
    J-S05044-17
    the evidence presented. Simply put, [o]ne 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. A new trial is
    warranted in this context only when the verdict is so
    contrary to the evidence that it shocks one’s sense of
    justice and the award of a new trial is imperative so that
    right may be given another opportunity to prevail.
    Of equal importance is the precept that, [t]he finder
    of fact . . . exclusively weighs the evidence, assesses the
    credibility of witnesses, and may choose to believe all,
    part, or none of the evidence.
    Commonwealth v. Konias, 
    136 A.3d 1014
    , 1022-23 (Pa. Super. 2016),
    appeal denied, 
    145 A.3d 724
    (Pa. 2016) (citations and quotation marks
    omitted).
    In the instant case, the verdict confirms that the jury credited the
    testimony of the Commonwealth’s witnesses.         See, e.g., Commonwealth
    v. Karns, 
    70 A.3d 881
    , 884 (Pa. Super. 2013), appeal denied, 
    84 A.3d 1063
    (Pa. 2014) (Where . . . weight of the evidence [is] concerned, it is not the
    function of the appellate court to substitute its judgment based on a cold
    record for that of the trial court.”) (citation omitted).   Our review of the
    record reveals the trial court did not abuse its discretion in denying a new
    trial based on the weight of the evidence. See Konias, supra at 1022-23.
    Accordingly, Appellant’s weight of the evidence claim lacks merit.9
    ____________________________________________
    9
    As already noted, simple assault is a lesser-included offense of aggravated
    assault. See Novak, supra at 989. Because the jury’s verdict of guilty of
    (Footnote Continued Next Page)
    - 11 -
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    In its final issue, the Anders brief argues that Appellant “was denied a
    fair trial when his right to remain silent was violated when he was being
    questioned by the Commonwealth’s Attorney[.]” (Anders Brief, at 7; see
    
    id. at 13).
       This issue is waived for Appellant’s failure to file a pre-trial
    motion seeking to suppress the statement he provided to the police.               See
    Commonwealth v. Baumhammers, 
    960 A.2d 59
    , 76 (Pa. 2008);
    Pa.R.Crim.P. 581. Moreover, it would not merit relief.
    The record reflects that Appellant voluntarily provided an oral
    statement to the police, thereby neither remaining silent nor invoking his
    rights under the Fifth Amendment.                (See N.T. Trial, 2/29/16, at 159-60).
    Because Appellant voluntarily provided his statement to the police, we agree
    with counsel that this claim is wholly frivolous.
    Based on the foregoing, the claims raised in the Anders brief lack
    merit.     Further, our independent review of the record reveals no non-
    frivolous claims that Appellant could have raised.             We agree with counsel
    that this appeal is wholly frivolous. Accordingly, we grant counsel’s petition
    to withdraw and affirm the judgment of sentence.
    Judgment of sentence affirmed.                Counsel’s petition to withdraw is
    granted.
    _______________________
    (Footnote Continued)
    aggravated assault is not against the weight of the evidence, its verdict of
    guilty of simple assault is also not against the weight of the evidence.
    - 12 -
    J-S05044-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/30/2017
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