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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 assault 1 an d simple assault. 2 Appellant’s counsel has filed an Anders 3 brief, together with a petition to withdraw as counsel. We affirm the judgment of senten ce and grant counsel’s petition to withdraw.

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* 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).J-S48019- 14

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We summarize the facts and procedural history of this c ase 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 remain ed friends. On the night of October 6, 2012, Blair’s boyfriend, R ichard 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 slee ping 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 th e 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, Ap pellant walked towards the living room while Kehr exited toward the kitche n with his cell phone and called 911. Blair exited the bedroom and went upstairs to her da ughter’s room. Appellant followed and began choking Blair in the up stairs bedroom. Luckily,J-S48019- 14

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Blair’s friend and roommate Kelly Kesler pulled Appel lan t 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, te rroristic 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 coun ts) and aggravated assault. 4 On January 3, 2014, the trial court sentenced Appellan t to five (5) to twenty (20) years of imprisonment on the aggravate d 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, w hich 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) o pinion on March 25, 2014, which indicated the court had reviewed the record and c oncurred that no meritorious issues existed for direct appeal.

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4 The trial court entered a judgment of acquittal at t he close of the Commonwealth’s case as to the charges of burglary and crim inal trespass. The jury found Appellant not guilty of the charge of terroristic threats. The trial court found Appellant guilty of criminal mischi ef, a summary offense.J-S48019- 14

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As previously noted, Appellant’s counsel has filed an app lication 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 pr esented, 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 unde r Anders , counsel must file a brief that meets the requirements e stablished by our Supreme Court in Santiago . The brief must: (1) provide a summary of the procedural history and f acts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set fo rth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the app eal is frivolous. Counsel should articulate the relevant facts of record, co ntrolling case law, and/or statutes on point that have led to th e conclusion that the appeal is frivolous. Santiago , 978 A.2d at 361. Counsel must also provide a copy o f the Anders brief to the appellant, together with a letter tha t advises the appellant of his or her right to “(1) retain new coun sel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appella nt deems worthy of the court’s atten tion 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

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5 978 A.2d 349 (Pa.2009).J-S48019- 14

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sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the antecedent requirements ha ve been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wh olly frivolous.” Commonwealth v. Palm , 903 A.2d 1244, 1246 (Pa.Super.2006). Instantly, counsel filed a Petition to Withdraw as Cou nsel. The petition states counsel drafted and filed an Anders brief after determining that there were no non-frivolous issues to be raised on appeal. Th e petition further explains that counsel notified Appellant of the with drawal 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 bel ieved had merit. See Letter to Appellant, May 9, 2014, attached to Petiti on 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 reco rd, refers to evidence of record that might arguably support the issue raise d on appeal, provides citations to relevant case law, and states his conclusion t hat 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 base d on the issue of arguable merit raised in the Anders brief:J-S48019- 14

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1. Whether the guilty verdict for aggravated assault was contrary to the weight of the evidence, where the in consistent and unreliable testimony of Stacey Blair was the only direct evidence linking [Appellant] to the crimes, where she w as under the influence of a controlled substance in that she inge sted more than the prescribed dose of prescription sleeping pills du e 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 [ i n] 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 verd ict is contrary to the weight of the evidence, concedes that t here is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the ligh t 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 grante d because of a mere conflict in the testimony or because the judge on t he same facts would have arrived at a different conclusion. A t rial judge must do more than reassess the credibility of the witnesse s 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 t hirteenth juror. Rather, the role of the trial judge is to de termine that notwithstanding all the facts, certain facts are so clea rly 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 b ecause the verdict is against the weight of the evidence only when the ver dict is so contrary to the evidence as to shock one’s sense of justice, “such that rig ht must beJ-S48019- 14

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given another opportunit y 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 ve rdict is against the weight of the evidence. Widmer , 744 A.2d at 753. When reviewing the trial court’s determination, we give the gravest defer ence to the findings of the court below. We review the court’s actions for an a buse of discretion. Id. Here, the Commonwealth presented the testimony of St acey Blair, Richard Kehr, and the responding Pennsylvania State Po lice trooper at trial. Blair and Kehr both gave first-hand testimony to the events as described
supra . The State trooper testified that he observed injur ies consistent with the claims that Appellant had assaulted both Blair an d Kehr. The trooper also testified that Appellant exhibited numerous signs o f 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 testi mony 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 d id not present evidence to contradict the Commonwealth’s evidence. Based on the foregoing, we discern no abuse of discretio n or trial court error in the trial court’s denial of Appellant’s reque st for a new trial based on the weight of the evidence. Nothing about the verdi ct is contrary to theJ-S48019- 14

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evidence so as to shock one’s sense of justice. The jury hea rd the testimony in this matter. The jury understood Blair had taken more sleeping medication than her prescription called for, and yet sti ll credited he r 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 fri volous. Given the foregoing, Appellant’s claim that his conviction was against the weight of the evidence fails. Further, our indep endent review of the record has revealed no non-frivolous claims that Appell ant could have raised, and we agree with counsel that this appeal is wholly fr ivolous. Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. Counsel’s petition to w ithdraw is granted. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/12/2014