J-S09012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA,

 Appellee

v.

STEVEN PHILIP MARTI, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 720 MDA 2017

Appeal from the Judgment of Sentence February 23, 2017

in the Court of Common Pleas of York County 

Criminal Division at No.: CP-67-CR-0004635-2015

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED MARCH 26, 2018

Appellant, Steven Philip Marti, appeals from the judgment of sentence 

imposed after his jury conviction of simple assault and intimidation of a 

witness.1, 2 Counsel has filed a petition to withdraw pursuant to Anders v. 

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 

349 (Pa. 2009). We affirm the judgment of sentence and grant counsel’s 

petition.

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*Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2701(a)(1) and 4952(a)(2), respectively.

2 The trial court also convicted Appellant of summary harassment. See 18 

Pa.C.S.A. § 2709(a)(1). No sentence was imposed on this conviction. (See 

N.T. Sentencing, 2/23/17, at 34).
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We take the following factual and procedural background from our 

independent review of the certified record. Trial in this matter commenced on 

January 3, 2017. At trial, Katelyn Lynch, Appellant’s former girlfriend,

testified that, on the night of the subject incident, June 16, 2015, she and 

Appellant were drinking at a bar in Hellam Township. Although the two argued 

while at the establishment, and Lynch “had a really bad feeling,” they left 

together to go home when it closed. (N.T. Trial, 1/04/17, at 113; see id. at 

111-12).

On arriving home, the argument resumed, and Appellant stated he 

would stay at his mother’s. (See id. at 116). He began packing, but then 

“everything started to escalate.” (Id.). He “got in [Lynch’s] face[,]” stating 

he would not leave until they talked. (Id.; see id. at 117). When she replied 

she did not feel like talking, Appellant grabbed the apartment keys from a 

lanyard around Lynch’s neck, threw her cell phone, and shoved her onto the 

couch. (See id. at 117-18). Lynch pulled her knees up, bringing them to her 

chest, as Appellant started to come at her. (See id. at 119). Lynch could 

feel Appellant’s fingertips on her neck, but before he could go any further, 

their dog bit him in the leg, allowing Ms. Lynch the opportunity to get up and 

attempt to leave. (See id. at 121-22). However, before she could escape, 

Appellant pushed Ms. Lynch into a closet door, breaking it, and causing her to 

fall into it. (See id. at 123-24). As she and Appellant struggled, he hit her in 
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the back of the head, she fell to the floor, and he punched her in the mouth. 

(See id. at 125-28). 

Thereafter, Appellant took Lynch to the bathroom to clean her up so he 

could inspect her wounds. (See id. at 129-30). Lynch repeatedly asked 

Appellant to call 911 so that she could get medical care for her injuries, but 

he refused to do so unless she agreed to tell a false version of events. (See 

id. at 130-31). Because she knew it was the only way Appellant would call 

911, Ms. Lynch agreed to lie about what had transpired. (See id. at 131). 

Appellant remained in her presence when the police and ambulance crews 

arrived, and told them his version of the “accident.” (Id. at 132). Because 

Appellant rode along in the ambulance on the way to the hospital, Lynch 

testified she was afraid to tell the medical personnel the truth about what 

happened. (See id. at 133). Once Lynch was in the emergency room and 

away from Appellant, she revealed what actually transpired. (See id. at 134).

Dr. Lorie Piccoli, the emergency room doctor who treated Lynch, 

observed a laceration to the back of her head, a disruption of her central 

incisors (teeth pushed in), and swelling of her lips. (See id. at 140, 142-44). 

A CT scan confirmed the injury to Lynch’s teeth, and revealed a fracture of 

her maxilla (the bone above the upper lip). (See id. at 144). Dr. Piccoli 

testified that these injuries result in chronic pain, sensitivity to heat and cold, 

disfigurement, scarring, and headaches. (See id. at 146).
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Appellant elected to testify on his own behalf. (See id. at 254). 

According to his version of events, after he and Ms. Lynch left the bar on June 

16, 2015, she began punching him in the shoulder on the drive home. (See 

id. at 259). After arriving at the residence, Appellant went inside to get 

clothes so that he could spend the night at his mother’s house. (See id. at 

260-61). When he tried to leave, Ms. Lynch blocked him from doing so. (See 

id. at 265). Thereafter, Ms. Lynch fell over the dog, hitting her head on the 

doorknob and a piece of furniture. (See id. at 265, 269). Appellant testified 

that he then voluntarily called 911 so that Ms. Lynch could get medical 

attention. (See id. at 269). On cross-examination, Appellant conceded that, 

before Lynch kicked him, she was on the couch and he was standing, requiring 

her to get up, beat him to the front door, and block him from leaving. (See 

id. at 275).

At the conclusion of a trial, the jury convicted Appellant of simple assault 

and intimidation of a witness, and found him not guilty of aggravated assault.3 

On February 23, 2017, the trial court sentenced Appellant to an aggregate 

term of not less than fifty-four nor more than 108 months’ incarceration. The 

trial court denied Appellant’s post-sentence motion, and he timely appealed.4 

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3 18 Pa.C.S.A. § 2702(a)(1).

4 Appellant timely filed his statement of errors complained of on appeal on 

July 20, 2017, pursuant to the court’s order and grant of extensions. See

Pa.R.A.P. 1925(b). The trial court filed an opinion on November 8, 2017. 

See Pa.R.A.P. 1925(a).
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On December 18, 2017, counsel filed a petition for leave to withdraw and an 

Anders brief on the basis that the appeal is frivolous. Appellant has not 

responded.

Before reaching Appellant’s issues, we must consider counsel’s request 

to withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 

2009). 

The standard of review for an Anders brief is well-settled.

Court-appointed counsel who seek to withdraw from representing 

an appellant on direct appeal on the basis that the appeal is 

frivolous 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) file a brief referring to anything 

that arguably might support the appeal but which 

does not resemble a “no-merit” letter or amicus curiae

brief; and (3) furnish a copy of the brief to the 

defendant and advise the defendant of his or her right 

to retain new counsel or raise any additional points 

that he or she deems worthy of the court’s attention.

Id. (citations and quotation marks omitted). Further, our Supreme Court 

ruled in Santiago, supra, that Anders briefs must contain “a discussion of 

counsel’s reasons for believing that the client’s appeal is frivolous[.]” 

Santiago, supra at 360.

Instantly, counsel’s Anders brief and application to withdraw comply 

with the applicable technical requirements and reveal that he has made “a 

conscientious examination of the record [and] determined that the appeal 

would be frivolous[.]” Lilley, supra at 997 (citation omitted). Additionally, 
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the record establishes that counsel served Appellant with a copy of the Anders 

brief and application to withdraw, and a letter of notice, which advised 

Appellant of his right to retain new counsel or to proceed pro se and raise 

additional issues to this Court. See id.; (see also Petition to Withdraw as 

Counsel, 12/18/17, Exhibit A, at 1). Further, the application and brief cite “to 

anything that arguably might support the appeal[.]” Lilley, supra at 997 

(citation omitted); (see also Anders Brief, at 11-12, 17-25). As noted by 

our Supreme Court in Santiago, the fact that some of counsel’s statements 

arguably support the frivolity of the appeal does not violate the requirements 

of Anders. See Santiago, supra at 360-61.

Having concluded that counsel’s petition and brief comply with the 

technical Anders requirements, we must “conduct [our] own review of the 

trial court’s proceedings and render an independent judgment as to whether 

the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation 

omitted).

The Anders brief raises three questions for our review:

I. [Whether t]he trial court erred in grading Appellant’s 

intimidation of witness conviction as a felony when the jury 

acquitted Appellant of the triggering offense of felony aggravated 

assault[?]

II. [Whether t]he evidence was insufficient to convict Appellant 

beyond a reasonable doubt of intimidation of witness because the 

Commonwealth failed to prove Appellant intended to intimidate 

the victim into refraining from reporting, or providing false 

information, about the assault[?]
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III. [Whether t]he evidence was insufficient to convict Appellant 

beyond a reasonable doubt of simple assault because the 

Commonwealth failed to rebut Appellant’s claim of justification[?]

(Anders Brief, at 5).

The standard of review for Appellant’s first issue is well-settled:

The proper grading of a criminal offense is an issue of 

statutory interpretation and implicates the legality of the sentence 

imposed. . . . The interpretation of a statute is a pure question of 

law, and therefore our standard of review is de novo and our scope 

of review is plenary.

Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super. 2013), appeal 

denied, 85 A.3d 482 (Pa. 2014) (citations omitted).

Section 4952 of the Crimes Code provides, in pertinent part, that the 

offense of intimidation of a witness or victim “is a felony of the first degree if 

a felony of the first degree . . . was charged in the case in which the actor 

sought to influence or intimidate a witness or victim as specified in this 

subsection.” 18 Pa.C.S.A. 4952(b)(2) (emphasis added).

Instantly, the Commonwealth charged Appellant with aggravated 

assault as a felony of the first degree. (See Information, 8/07/15, at 1). 

Appellant maintains, however, that because the jury acquitted him of 

aggravated assault, the trial court erred in grading his intimidation of a 

witness conviction as a felony pursuant to 18 Pa.C.S.A. 4952(b)(2). (See 

Anders Brief, at 17-19). This issue lacks merit.

In Felder, supra, “Felder . . . argue[d] that because the jury hung on 

the aggravated assault charge and it was nolle prossed by the Commonwealth 
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before sentencing, application of subsection 4952(b)(2) was improper[.] 

Felder, supra at 516 (record citation omitted). This Court rejected Felder’s

argument, observing:

A first-degree felony was charged in this case, and thus 

the trial court properly graded Felder’s conviction for 

witness/victim intimidation as a first-degree felony pursuant to 

subsection 4952(b)(2). Felder’s alternative interpretation of this 

subsection would require us to insert additional language into the 

statute, namely that the first-degree felony charge “continued to 

exist in the case at the time of sentencing.” Nothing in section 

4952(b)(2) suggests that the legislature intended such a result. 

To the contrary, the statute’s focus on the most serious crime 

charged makes eminent sense, since the relevant charge is the 

most serious one a criminal defendant attempted to escape by use 

of intimidation.

Id. at 517 (emphasis in original).

Therefore, applying the foregoing reasoning to this case, we conclude 

that the trial court properly sentenced Appellant of witness intimidation graded 

as a felony of the first degree. See id. Appellant’s first issue does not merit 

relief.

In his second issue, Appellant argues that “the Commonwealth failed to 

present sufficient evidence to prove that he intended to intimidate the victim 

from reporting or providing false information about the assault.” (Appellant’s 

Brief, at 19; see id. at 19-21). This issue does not merit relief.

A claim challenging the sufficiency of the evidence is a 

question of law. Evidence will be deemed sufficient to support the 

verdict when it establishes each material element of the crime 

charged and the commission thereof by the accused, beyond a 

reasonable doubt. Where the evidence offered to support the 

verdict is in contradiction to the physical facts, in contravention to 

human experience and the laws of nature, then the evidence is 
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insufficient as a matter of law. When reviewing a sufficiency 

claim[,] the court is required to view the evidence in the light most 

favorable to the verdict winner giving the prosecution the benefit 

of all reasonable inferences to be drawn from the evidence.

Commonwealth v. McClellan, ___ A.3d ___, 2018 WL 560762, at *2 (Pa. 

Super. filed Jan. 26, 2018) (citation omitted). “Furthermore, the trier of fact 

. . . is free to believe, all, part, or none of the evidence presented when making 

credibility determinations. In deciding a sufficiency of the evidence claim, this 

[C]ourt may not reweigh the evidence and substitute our judgment for that of 

the fact-finder.” Id. (citations omitted).

Section 4952(a) of the Crimes Code provides, in pertinent part: 

A person commits [the] offense [of intimidation of a witness or 

victim] if, with the intent to or with the knowledge that his conduct 

will obstruct, impede, impair, prevent or interfere with the 

administration of criminal justice, he intimidates or attempts to 

intimidate any witness or victim to . . . [g]ive any false or 

misleading information or testimony relating to the commission of 

any crime to any law enforcement officer, prosecuting official or 

judge.

18 Pa.C.S.A. § 4952(a)(2). “The crime is committed if one, with the necessary 

mens rea, attempts to intimidate a witness or victim. . . . The Commonwealth 

is not required to prove mens rea by direct evidence. Frequently such 

evidence is not available. In such cases, the Commonwealth may rely on 

circumstantial evidence.” Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. 

Super. 2016), appeal denied, 161 A.3d 791 (Pa. 2016) (citation, emphasis, 

and quotation marks omitted).
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In the present case, the Commonwealth provided evidence that, after 

Appellant assaulted Lynch, he would only call for medical assistance if she 

agreed to lie to authorities by telling them his version of events. From this 

evidence, the jury could reasonably infer that Appellant intimidated Lynch with 

the intent that she give false information to authorities. See id.; see also 18 

Pa.C.S.A. § 4952(a)(2). Hence, the evidence was sufficient to support 

Appellant’s conviction of intimidation of a witness or victim. See McClellan, 

supra at *2. Appellant’s second issue lacks merit. 

In his third issue, Appellant maintains that the evidence was insufficient 

to convict him of simple assault where “the Commonwealth failed to rebut his 

claim of [j]ustification[.]” (Anders Brief, at 21; see id. at 21-25). This claim 

does not merit relief.

Section 505 of the Crimes Code provides, in pertinent part: “The use of 

force upon or toward another person is justifiable when the actor believes that 

such force is immediately necessary for the purpose of protecting himself 

against the use of unlawful force by such other person on the present 

occasion.” 18 Pa.C.S.A. § 505(a). “When an accused raises a self-defense 

claim, the Commonwealth must prove beyond a reasonable doubt that the 

defendant’s acts were not justifiable self-defense.” Commonwealth v. 

Hammond, 953 A.2d 544, 559 (Pa. Super. 2008), appeal denied, 964 A.2d 

894 (Pa. 2009) (citation omitted). 

The Commonwealth sustains this burden if it establishes at 

least one of the following: 1) the accused did not reasonably 
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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. It remains the province of the jury to determine 

whether the accused’s belief was reasonable, whether he was free 

of provocation, and whether he had no duty to retreat.

Id. (citation omitted). “Although the Commonwealth is required to disprove 

a claim of self-defense . . . a jury is not required to believe the testimony of 

the defendant who raises the claim.” Commonwealth v. Houser, 18 A.3d 

1128, 1135 (Pa. 2011), cert. denied, 565 U.S. 1247 (2012) (citation omitted). 

Here, Appellant testified that Lynch punched him in the shoulder on the 

way home from the bar, and that he pushed her in response to her pushing 

and kicking him and blocking his retreat from the residence, a version of 

events at odds with Lynch’s testimony. In assessing credibility, the jury was 

free to believe, all, part or none of the testimony, and was not required to 

believe Appellant. See id.; see also McClellan, supra, at *2. 

Further, even assuming arguendo that Appellant’s version of events 

were true, he admitted that, before Lynch struck him, she had to get up from 

the couch, beat him to the front door, and block him from leaving. Based on 

this testimony, the jury could properly find that the Commonwealth 

established Appellant did not reasonably believe he was in danger of death or 

serious bodily injury. See Hammond, supra at 559.

Accordingly, viewing the evidence in the light most favorable to the 

Commonwealth, it is sufficient to support Appellant’s conviction of simple 
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assault, where the evidence established that he did not act in justifiable selfdefense. See McClellan, supra, at *2. Appellant’s third issue lacks merit.

Therefore, based on our own independent review of the record, we 

conclude that Appellant’s claims are “wholly frivolous” and do not merit relief. 

Lilley, supra at 998 (citation omitted). Additionally, we find no other nonfrivolous issues that would merit relief.

Judgment of sentence affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/26/2018