J-S54039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE MANUEL FEBRES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 601 MDA 2019

Appeal from the Judgment of Sentence Entered March 22, 2019

In the Court of Common Pleas of Mifflin County Criminal Division at 

No(s): CP-44-CR-0000164-2018

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 26, 2020

Appellant, Jose Manuel Febres, appeals from the Judgment of Sentence 

entered in the Mifflin County Court of Common Pleas following his conviction 

for Criminal Attempt-Criminal Homicide, Aggravated Assault, Aggravated 

Assault with a Deadly Weapon, Terroristic Threats, two counts Recklessly 

Endangering Another Person (“REAP”), and Simple Assault.1 With this appeal, 

Appellant’s counsel has filed a Petition to Withdraw as Counsel and an Anders2

brief. After careful review, we affirm the Judgment of Sentence and grant 

counsel’s Petition to Withdraw.

We glean the following facts from the certified record. The Victim had 

an on-and-off-again relationship with Appellant. Appellant had threatened the 

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1 18 Pa.C.S. §§ 901(a), 2501, 2702(a)(1), 2702(a)(4), 2706(a)(1), 2705, and 

2701(a)(1), respectively.

2 Anders v. California, 386 U.S. 738 (1967).
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Victim in the past, informing her that if he ever saw her with another man, he 

would beat her and the other man. 

In February 2018, the Victim lived with her then-3 year old son, Tresa 

Walker, and Dwayne Jones. On February 25, 2018, the Victim spent the day 

with a male friend. Her male friend dropped her off at her house around 3:00 

PM; Appellant and Mr. Jones were on the porch when the Victim returned 

home. 

Later that day, around 5:00 PM, Mr. Jones prepared dinner in the kitchen 

while Appellant, Ms. Walker, and the Victim and her son sat in the living room. 

The Victim was sitting in a chair and began chatting with a male friend on her 

cellphone. Appellant then approached the Victim, stood over her, and 

instructed her to turn off her phone. The Victim turned off her phone and told

Appellant “don’t put your hands on me.” N.T. Trial, 1/15/19, at 37. Appellant 

began punching the Victim and then stabbed the Victim with a kitchen knife. 

Ms. Walker screamed that Appellant was hitting and stabbing the Victim, and 

Mr. Jones ran into the living room to intervene. A struggled ensued, in which 

Mr. Jones threw Appellant into a television. However, Appellant got up and 

stabbed the Victim, yelling “bitch, I’m gonna kill you.” Id. at 42. Mr. Jones 

then grabbed Appellant and pushed him out the door. However, Appellant reentered the house and again stabbed the Victim. Mr. Jones then threw 

Appellant on the porch and locked the door.

The Victim sustained injuries to her cheek, nasal bridge, chest, left 

shoulder, and hands. After Ms. Walker called 911, the Victim was transported 
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to the Lewisburg Hospital. Due to the severity of her injuries, a helicopter 

transported the Victim to the Altoona Trauma Emergency Room, where 

medical staff used surgical staples and sutures to treat her lacerations.

Appellant was arrested and charged with the above crimes. A two-day 

jury trial commenced on January 15, 2019, in which the Commonwealth 

presented testimony from the Victim, Mr. Jones, Ms. Walker, and Megan 

Morris, an expert witness physician assistant who treated the Victim. 

On January 16, 2019, Appellant was convicted of the above crimes. The 

court ordered a pre-sentence investigation (“PSI”) report, and subsequently, 

on March 22, 2019, sentenced Appellant to an aggregate term of 21 to 42 

years of imprisonment.3 Appellant did not file a post-sentence motion. 

Appellant timely filed a Notice of Appeal. Thereafter, counsel filed a 

Statement of Intent to File an Anders Brief. See Pa.R.A.P. 1925(c)(4). 

Accordingly, the trial court did not file a Rule 1925(a) Opinion. 

Appellant’s counsel filed two Anders Briefs and a Petition to Withdraw 

as Counsel with this Court. However, following this Court’s review of counsel’s 

Anders briefs, we concluded that counsel failed to comply with Anders and 

denied counsel’s Petition to Withdraw. Commonwealth v. Febres, No. 601 

MDA 2019, unpublished memorandum (Pa. Super. filed Nov. 31, 2019). We 

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3 For sentencing purposes, the trial court merged one count REAP, Aggravated 

Assault, Aggravated Assault with a Deadly Weapon, Terroristic Threats, and 

Simple Assault convictions with the Criminal Attempt-Criminal Homicide 

conviction. 
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instructed counsel to file either a compliant Anders brief or an advocate’s 

brief, and afforded the Commonwealth and Appellant 14 days to respond.

Appellant’s counsel filed an Amended Anders Brief challenging the 

sufficiency of evidence and Appellant’s sentence, and raising a claim of newly 

discovered evidence. Amended Anders Br. at 4-9 (unpaginated). The 

Commonwealth and Appellant have not filed a response.

As a preliminary matter, we address counsel’s request to withdraw as 

counsel. “When presented with an Anders Brief, this Court may not review 

the merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 

2010) (citation omitted). In order for counsel to withdraw from an appeal 

pursuant to Anders, our Supreme Court has determined that counsel must 

meet the following requirements:

(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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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Counsel has complied with the mandated procedure for withdrawing as 

counsel. Additionally, counsel confirms that he sent Appellant a copy of 

the Anders Brief and Petition to Withdraw, as well as a letter explaining to 

Appellant that he has the right to retain new counsel, proceed pro se, or to 

raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748, 

751 (Pa. Super. 2005) (describing notice requirements). 

Because counsel has satisfied the above requirements, we will first 

address the substantive issues raised in the Anders Brief. Subsequently, we 

must “make a full examination of the proceedings and make an independent 

judgment as to whether the appeal is in fact wholly frivolous.” Santiago, 978 

A.2d at 355 n.5 (citation omitted). See also Commonwealth v. Yorgey, 188 

A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders requires the 

reviewing court to “review ‘the case’ as presented in the entire record with 

consideration first of issues raised by counsel”).

Issue 1: Sufficiency of the Evidence

In his first issue, Appellant challenges the sufficiency of evidence 

supporting all seven of his convictions—one count of Criminal AttemptCriminal Homicide, Aggravated Assault, Aggravated Assault with a Deadly 

Weapon, Terroristic Threats, and Simple Assault, and two counts of REAP. See 

Amended Anders Br. at 4-7 (unpaginated).

“A claim challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur standard 
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of review is de novo and our scope of review is plenary.” Commonwealth v. 

Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted). In 

reviewing a sufficiency challenge, we determine “whether the evidence at trial, 

and all reasonable inferences derived therefrom, when viewed in the light 

most favorable to the Commonwealth as verdict winner, are sufficient to 

establish all elements of the offense beyond a reasonable doubt.” 

Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). “Further, a 

conviction may be sustained wholly on circumstantial evidence, and the trier 

of fact—while passing on the credibility of the witnesses and the weight of the 

evidence—is free to believe all, part, or none of the evidence.” 

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017). “In 

conducting this review, the appellate court may not weigh the evidence and 

substitute its judgment for the fact-finder.” Id.

Criminal Attempt-Criminal Homicide, Aggravated Assault, Simple 

Assault

Pursuant to the Crimes Code, “[a] person commits attempt when, with 

intent to commit a specific crime, he does any act which constitutes a 

substantial step toward the commission of that crime.” 18 Pa.C.S. § 901. 

Further, “[a] person is guilty of criminal homicide if he intentionally, 

knowingly, recklessly or negligently causes the death of another human 

being.” 18 Pa.C.S. § 2501. “The use of a deadly weapon on a vital part of the 

human body is sufficient to establish the specific intent to 

kill.” Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005). The 
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chest is considered a vital part of the body. Commonwealth v. Hanible, 836 

A.2d 36, 39 (Pa. 2003). Thus, with respect to the Criminal Attempt-Criminal 

Homicide charge, the Commonwealth was required to present evidence to 

show that Appellant committed a substantial step toward intentionally causing

the death of another human being. 18 Pa.C.S. §§ 901, 2501

A person is guilty of Aggravated Assault if he “attempts to cause serious 

bodily injury to another, or causes such injury intentionally, knowingly or 

recklessly under circumstances manifesting extreme indifference to the value

of human life[.]” 18 Pa.C.S. § 2702(a). 

A person is guilty of Simple Assault if he “attempts to cause or 

intentionally, knowingly or recklessly causes bodily injury to another.” 18 

Pa.C.S. § 2701(a)(1).

“Deadly weapon” is defined as “any . . . device or instrumentality which, 

in the manner in which it is used or intended to be used, is calculated or likely 

to produce death or serious bodily injury.” 18 Pa.C.S. § 2301. “Serious bodily 

injury” is defined as “[b]odily injury which creates a substantial risk of death 

or which causes serious, permanent disfigurement, or protracted loss or 

impairment of the function of any bodily member or organ.” Id. Additionally, 

“bodily injury” constitutes “[i]mpairment of physical condition or substantial 

pain.” Id.

Aggravated Assault and Simple Assault are lesser-included offenses of 

Criminal Attempt-Criminal Homicide when premised on the same 
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act. Commonwealth v. Hilliard, 172 A.3d 5, 13 (Pa. Super. 2017); see 

Commonwealth v. Brown, 605 A.2d 429, 432 (Pa. Super. 1992) (finding 

that the elements of simple assault are met by a conviction 

for aggravated assault). Thus, evidence sufficient to prove Criminal AttemptCriminal Homicide is also sufficient to prove Aggravated Assault and Simple 

Assault. See Hilliard, 172 A.3d at 13; Brown, 605 A.2d at 432.

The Commonwealth presented evidence sufficient to establish every 

element of Criminal Attempt-Criminal Homicide. The Victim testified that on 

February 25, 2018, Appellant stabbed her multiple times with a four-to-five 

inch long kitchen knife in the face, chest, left shoulder, and hands while yelling 

“bitch, I’m gonna kill you.” N.T. Trial at 42, 50. She testified that she was 

bleeding heavily from her wounds and was admitted to Altoona Hospital to 

treat her injuries. Id. at 43. She indicated that she had scars on her chest, 

shoulder, face, and hands from the attack. Id. at 47-49. Ms. Morris testified 

that she assisted in treating the Victim’s face, chest, shoulder, and hand 

wounds at Altoona Hospital with surgical staples and sutures. Id. at 139. She 

opined that the Victim’s chest wound was approximately 3 to 4 centimeters 

long and her facial laceration was approximately 7 centimeters long. Id. at 

139-40. 

The evidence elicited at trial, when viewed in the light most favorable to 

the Commonwealth demonstrates that Appellant stabbed the Victim in her 

chest, a vital part of her body, with a knife while threatening to kill her. 
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Additionally, the attack caused the Victim serious bodily injury—lacerations 

requiring the need for surgical sutures and staples and resulting in scarring.

Thus, the Commonwealth presented evidence to show that Appellant

committed a substantial step toward intentionally causing the death of another 

human being. The evidence was, therefore, sufficient to sustain Appellant's 

convictions for Criminal Attempt-Criminal Homicide. Accordingly, the evidence 

was also sufficient to prove Aggravated Assault and Simple Assault. See

Hilliard, 172 A.3d at 13; Brown, 605 A.2d at 432. Appellant’s challenges to 

these convictions, therefore, have no merit.

Aggravated Assault with a Deadly Weapon

A person is guilty of Aggravated Assault with a Deadly Weapon if he 

“attempts to cause or intentionally or knowingly causes bodily injury to 

another with a deadly weapon[.]” 18 Pa.C.S. § 2702(a)(4).

4

The Commonwealth presented evidence sufficient to establish each 

element of Aggravated Assault with a Deadly Weapon. As discussed above, 

the Victim testified that on February 25, 2018, Appellant stabbed her multiple 

times with a kitchen knife in the face, chest, left shoulder, and hands while 

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4 Aggravated Assault under 18 Pa.C.S. § 2702(a)(4) is not a lesser-included 

offense of Criminal Attempt-Criminal Homicide because Subsection (a)(4) 

requires the Commonwealth to demonstrate the use of a deadly weapon, 

whereas the elements of Criminal Attempt-Criminal Homicide do not. See 18 

Pa.C.S. §§ 901(a), 2502(a). ). Here, however, the Commonwealth proved 

Criminal Attempt-Criminal Homicide by demonstrating Appellant used a 

deadly weapon on a vital part of the Victim’s body. See Randolph, 873 A.2d 

at 1281. 
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threatening to kill her. N.T. Trial at 38-39, 42, 50. She explained that she was 

bleeding heavily from her stab wounds, which required treatment with staples 

and sutures. Id. at 44. She testified that as a result of the attack, she suffers 

from damaged nerves, pain, and limited use of her hand. Id. at 44-45. 

The evidence elicited at trial, when viewed in the light most favorable to 

the Commonwealth demonstrates that Appellant intentionally caused bodily 

injury to the Victim with a deadly weapon. Accordingly, the evidence was 

sufficient to Aggravated Assault with a Deadly Weapon and Appellant’s 

challenge to this conviction is meritless.

Terroristic Threats

A person commits the crime of Terroristic Threats “if the person 

communicates, either directly or indirectly, a threat to [ ] commit any crime 

of violence with intent to terrorize another. . . . ” 18 Pa.C.S. § 2706(a)(1). To 

convict a defendant of Terroristic Threats, “the Commonwealth must prove 

that 1) the defendant made a threat to commit a crime of violence, and 2) the 

threat was communicated with the intent to terrorize another or with reckless 

disregard for the risk of causing terror.” Commonwealth v. Beasley, 138 

A.3d 39, 46 (Pa. Super. 2016) (citations omitted).

The Official Comment to Section 2706 explains that “[t[he purpose of 

th[is] section is to impose criminal liability on persons who make threats which 

seriously impair personal security. . . . It is not intended by this section to 

penalize mere spur-of-the-moment threats which result from anger.” 18 
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Pa.C.S. § 2706 cmt. This Court has held that “being angry does not render a 

person incapable of forming the intent to terrorize. In re J.H., 797 A.2d 260, 

263 (Pa. Super. 2002)(citation omitted). Rather, “this Court must consider 

the totality of the circumstances to determine whether the threat was a result

of a heated verbal exchange or confrontation.” Id.

The Commonwealth presented evidence sufficient to establish each 

element of Terroristic Threats. The Victim testified that on February 25, 2018, 

Appellant punched her and then stabbed her multiple times with a kitchen 

knife in the face, chest, left shoulder, and hands while threatening to kill her.

N.T. Trial at 38-39, 42, 50.

The evidence elicited at trial, when viewed in the light most favorable to 

the Commonwealth, demonstrates that Appellant made a threat to commit a 

crime of violence with the intent to terrorize the Victim and did, in fact, 

attempt to commit the crime of violence he threatened to commit. 

Accordingly, the evidence was sufficient to establish Terroristic Threats and 

Appellant’s challenge to this conviction is meritless.

REAP

Appellant was convicted of two counts of REAP, one for recklessly 

endangering the Victim’s three-year old child and one for recklessly 

endangering Ms. Walker.

“A person commits [REAP] if he recklessly engages in conduct which 

places or may place another person in danger of death or serious bodily 
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injury.” 18 Pa.C.S. § 2705. REAP “is a crime directed against reckless conduct 

entailing a serious risk to life or limb out of proportion to any utility the conduct 

might have.” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 

2014) (citation omitted). “A person acts in a reckless manner when he 

consciously disregards a substantial and unjustifiable risk.” Id. (citing 18 

Pa.C.S. § 302(b)(3)).

The Commonwealth presented evidence sufficient to establish REAP.

The Victim testified that when Appellant stabbed her on February 25, 2018, 

she was sitting on a chair next to her three-year old son and Ms. Walker, who 

were both sitting on a loveseat. N.T. Trial at 57. The Victim recalled that when 

Appellant was attacking her, she told Ms. Walker to grab her son and get out 

of the living room. Id. at 66. Mr. Jones testified that the Victim, her son, and 

Ms. Walker were in the living room during the attack, and he was concerned 

for the Victim’s son when he realized Appellant was stabbing the Victim 

“because [her son] was right there.” Id. 76-77.

The evidence, viewed in a light most favorable to the Commonwealth 

established that Appellant recklessly engaged in conduct—stabbing the Victim 

in close proximity to her three-year old child and Ms. Walker, which placed

them in danger of death or serious bodily injury. Accordingly, the evidence 

was sufficient to establish both REAP counts, and Appellant’s challenge to 

these convictions is meritless.
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Issue 2: Sentencing

In his second issue, Appellant challenges the discretionary aspects of 

his sentence, asserting that his sentence is “manifestly unreasonable” and 

“unduly harsh.” Amended Anders Br. at 8 (unpaginated).

A challenge to discretionary aspects of a sentence is not reviewable as 

a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. 

Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction 

by, inter alia, preserving a challenge at sentencing or in a post-sentence 

motion. Id. “Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing or in a motion 

to modify the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932, 

935 (Pa. Super. 2013). 

Here, Appellant did not preserve this challenge at his sentencing hearing 

or thereafter in a Post-Sentence Motion. Accordingly, he has waived any 

challenge to discretionary aspects of his sentence.

When an appellant fails to raise an issue before the trial court and has, 

thus, waived the issue on direct appeal, the courts consider that issue 

“frivolous” for purposes of an Anders analysis. Commonwealth v. Tukhi, 

149 A.3d 881, 888-89 (Pa. Super. 2016); Commonwealth v. Kalichak, 943 

A.2d 285, 291 (Pa. Super. 2008). Accordingly, we agree with counsel that 

Appellant's discretionary aspects of sentencing challenge raised in 

counsel's Anders Brief is frivolous.
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Issue 3: Newly Discovered Evidence

In his third issue, Appellant purports to raise a claim of newly discovered 

evidence. Amended Anders Br. at 8 (unpaginated). Appellant asserts that 

after trial, his grandmother informed him that the Victim had been fired from 

her job as a sales person, which contradicted her testimony that she had quit 

her job. Id. Therefore, he contends that this evidence would compel a 

different verdict. Id. at 9.

A claim of newly discovered evidence may be raised for the first time on 

appeal. Commonwealth v. Rivera, 939 A.2d 355, 358 (Pa. Super. 2007).

To warrant relief, newly discovered evidence must: (1) not have been obtained 

before the conclusion of the trial by reasonable diligence; (2) not be merely 

corroborative or cumulative; (3) not be used solely for purposes of 

impeachment; and (4) be of such a nature and character that a different 

outcome is likely. Id. at 359.

In his Anders Brief, counsel fails to set forth the newly discovered 

evidence four-prong test. See Amended Anders Br. at 8-9 (unpaginated). 

Nevertheless, counsel acknowledges that new evidence used only for the 

purpose to impeach credibility does not warrant relief as newly discovered 

evidence. Id. at 9.

We agree that Appellant’s claim does not warrant relief because his

alleged new evidence would be used solely for the purpose to impeach the 
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Victim’s credibility. Rivera, supra at 359. Accordingly, this claim has no 

merit.

Conclusion

Additionally, our independent review of the record does not reveal any 

non-frivolous arguments available to Appellant. Thus, we agree with counsel 

that this appeal is wholly frivolous. Accordingly, we grant counsel’s

Petition to Withdraw as Counsel and affirm Appellant’s Judgment of Sentence.

Judgment of Sentence affirmed. Counsel’s Petition to Withdraw as 

Counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/26/2020