J-S48019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

ROBBY LEE SHUKER 

 Appellant No. 290 MDA 2014 

Appeal from the Judgment of Sentence January 3, 2014

In the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0006047-2012 

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

 

MEMORANDUM BY JENKINS, J.: FILED AUGUST 12, 2014 

Appellant Robby Lee Shuker (“Appellant”) appeals from a January 3, 

2014 judgment of sentence entered in the Berks County Court of Common 

Pleas following his conviction for aggravated assault1

and simple assault.2 

Appellant’s counsel has filed an Anders3

 brief, together with a petition to 

withdraw as counsel. We affirm the judgment of sentence and grant 

counsel’s petition to withdraw.

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S. § 2702(a)(1). 

2

 18 Pa.C.S. § 2701(a)(1). 

3 Anders v. California, 386 U.S. 738 (1967). 
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 We summarize the facts and procedural history of this case as follows. 

Prior to October 6, 2012, Appellant and Stacey Blair (“Blair”) had been 

involved in a romantic relationship during which they had two children 

together. The relationship had ended as of October 6, 2012, and Blair had a 

new boyfriend. However, Appellant and Blair remained friends. 

On the night of October 6, 2012, Blair’s boyfriend, Richard Kehr 

(“Kehr”), spent the night at her home. Blair went to sleep at approximately 

11:00 p.m. or 12:00 a.m. with the aid of prescription sleeping pills. Because 

she was not feeling well, Blair took three of her sleeping pills, although her 

prescribed dosage was only one pill. 

At 2:30 a.m., Blair and Kehr were sleeping together in the master 

bedroom when they were awakened by Appellant – who had keys to the 

house – rattling the bedroom doorknob. Appellant began to yell, demanding 

that Blair open the door. Blair told Appellant she was not going to answer 

the door, and that he needed to leave. 

Instead of leaving, Appellant kicked in the door and entered the 

bedroom, yelling and cursing. Appellant pushed Blair onto the bed and 

slapped her face before turning and punching Kehr’s face. The two men 

fought for a period of time. Once they separated, Appellant walked towards 

the living room while Kehr exited toward the kitchen with his cell phone and 

called 911. 

Blair exited the bedroom and went upstairs to her daughter’s room. 

Appellant followed and began choking Blair in the upstairs bedroom. Luckily, 
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Blair’s friend and roommate Kelly Kesler pulled Appellant off Blair and 

escorted him down the steps to the lower level. Later, the Pennsylvania 

State Police arrived and arrested Appellant. 

The Commonwealth charged Appellant with burglary, terroristic 

threats, simple assault (two counts), criminal mischief, aggravated assault, 

and criminal trespass. Following a jury trial conducted on November 13, 

2013, Appellant was convicted of simple assault (2 counts) and aggravated 

assault.4

 On January 3, 2014, the trial court sentenced Appellant to five (5) 

to twenty (20) years of imprisonment on the aggravated assault conviction 

and a concurrent sentence of one (1) to two (2) years of imprisonment for 

the simple assault convictions. Appellant filed a post-sentence motion for a 

new trial based upon a weight of the evidence claim, which the trial court 

denied. Appellant timely appealed, and Appellant’s counsel filed a statement 

pursuant to Pa.R.A.P. 1925(c) indicating counsel’s intent to file an Anders

brief. The trial court filed its Pa.R.A.P. 1925(a) opinion on March 25, 2014, 

which indicated the court had reviewed the record and concurred that no 

meritorious issues existed for direct appeal. 

____________________________________________ 

4

 The trial court entered a judgment of acquittal at the close of the 

Commonwealth’s case as to the charges of burglary and criminal trespass. 

The jury found Appellant not guilty of the charge of terroristic threats. The 

trial court found Appellant guilty of criminal mischief, a summary offense. 
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As previously noted, Appellant’s counsel has filed an application 

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.

5

 Before 

addressing the merits of Appellant’s underlying issue presented, we must 

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin, 

928 A.2d 287, 290 (Pa.Super.2007) (en banc). 

Prior to withdrawing as counsel on a direct appeal under Anders, 

counsel must file a brief that meets the requirements established by our 

Supreme Court in Santiago. The 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 must also provide a copy of the 

Anders brief to the appellant, together with a letter that advises the 

appellant of his or her right to “(1) retain new counsel to pursue the appeal; 

(2) proceed pro se on appeal; or (3) raise any points that the appellant 

deems worthy of the court’s attention in addition to the points raised by 

counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 

353 (Pa.Super.2007). Substantial compliance with these requirements is 

____________________________________________ 

5

 978 A.2d 349 (Pa.2009). 
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sufficient. 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). 

 Instantly, counsel filed a Petition to Withdraw as Counsel. The petition 

states counsel drafted and filed an Anders brief after determining that there 

were no non-frivolous issues to be raised on appeal. The petition further 

explains that counsel notified Appellant of the withdrawal request, supplied 

him with a copy of the Anders brief, and sent Appellant a letter explaining 

his right to proceed pro se or with new, privately-retained counsel to raise 

any additional points or arguments that Appellant believed had merit. See

Letter to Appellant, May 9, 2014, attached to Petition to Withdraw as 

Counsel. In the Anders brief, counsel provides a summary of the facts and 

procedural history of the case with citations to the record, refers to evidence 

of record that might arguably support the issue raised on appeal, provides 

citations to relevant case law, and states his conclusion that the appeal is 

wholly frivolous and his reasons therefor. Accordingly, counsel has 

substantially complied with the requirements of Anders and Santiago. 

 As Appellant filed neither a pro se brief nor a counseled brief with new, 

privately-retained counsel, we review this appeal based on the issue of 

arguable merit raised in the Anders brief: 
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1. Whether the guilty verdict for aggravated assault was 

contrary to the weight of the evidence, where the inconsistent 

and unreliable testimony of Stacey Blair was the only direct 

evidence linking [Appellant] to the crimes, where she was under 

the influence of a controlled substance in that she ingested more 

than the prescribed dose of prescription sleeping pills due to a 

head cold and was dazed and confused about the events of

October 6, 2012, and no additional eyewitness testimony or 

evidence was presented as to [Appellant’s] involvement [in] the 

crime charged. 

Anders Brief, p. 7. 

Our review of this issue is governed by the following standard: 

A motion for new trial on the grounds that the verdict is 

contrary to the weight of the evidence, concedes that there is 

sufficient evidence to sustain the verdict. Thus, the trial court is 

under no obligation to view the evidence in the light most 

favorable to the verdict winner. 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. A trial judge 

must do more than reassess the credibility of the witnesses and 

allege that he would not have assented to the verdict if he were 

a juror. Trial judges, in reviewing a claim that the verdict is 

against the weight of the evidence do not sit as the thirteenth 

juror. Rather, the 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 to give them equal weight 

with all the facts is to deny justice. 

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal 

citations, quotations, and footnote omitted). 

 Stated differently, a court may award a new trial because the verdict is 

against the weight of the evidence only when the verdict is so contrary to 

the evidence as to shock one’s sense of justice, “such that right must be 
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given another opportunity to prevail.” Commonwealth v. Goodwine, 692 

A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight 

claim consists of a review of the trial court’s exercise of discretion, not a 

review of the underlying question of whether the verdict is against the 

weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the 

trial court’s determination, we give the gravest deference to the findings of 

the court below. We review the court’s actions for an abuse of discretion. 

Id.

 Here, the Commonwealth presented the testimony of Stacey Blair, 

Richard Kehr, and the responding Pennsylvania State Police trooper at trial. 

Blair and Kehr both gave first-hand testimony to the events as described 

supra. The State trooper testified that he observed injuries consistent with 

the claims that Appellant had assaulted both Blair and Kehr. The trooper 

also testified that Appellant exhibited numerous signs of intoxication, and 

admitted to going to Blair’s house, but claimed not to remember the events 

because he had blacked out. The jury credited the testimony of the 

Commonwealth’s witnesses. See Commonwealth v. Ratsamy, 934 A.2d 

1233, 1236 (Pa.2007) (“The Superior Court cannot deem incredible that 

which the fact-finder deemed worthy of belief.”). Appellant did not present 

evidence to contradict the Commonwealth’s evidence.

 Based on the foregoing, we discern no abuse of discretion or trial court 

error in the trial court’s denial of Appellant’s request for a new trial based on 

the weight of the evidence. Nothing about the verdict is contrary to the 
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evidence so as to shock one’s sense of justice. The jury heard the testimony 

in this matter. The jury understood Blair had taken more sleeping 

medication than her prescription called for, and yet still credited her 

testimony. Appellant now asks this Court to reassess the credibility of this 

witness. This we cannot do. See Ratsamy, supra. Thus, we agree that 

Appellant’s weight of the evidence claim is wholly frivolous.

Given the foregoing, Appellant’s claim that his conviction was against 

the weight of the evidence fails. Further, our independent review of the 

record has revealed no non-frivolous claims that Appellant could have raised, 

and we agree with counsel that this appeal is wholly frivolous. Accordingly, 

we affirm the judgment of sentence. 

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

granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/12/2014