Com. v. Acevedo, E.

• Court: Superior Court of Pennsylvania
• Decided: September 4, 2025
• Docket: 702 EDA 2024
• Status: Unpublished

Opinion

J-S25003-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD CHARLES ACEVEDO : : Appellant : No. 702 EDA 2024

Appeal from the Judgment of Sentence Entered February 5, 2024 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001590-2021

BEFORE: PANELLA, P.J.E., DUBOW, J., and BENDER, P.J.E.

MEMORANDUM BY PANELLA, P.J.E.: FILED SEPTEMBER 4, 2025

Edward Charles Acevedo appeals from the judgment of sentence

imposed on February 5, 2024, for his convictions of two counts of aggravated

assault, and one count each of simple assault and possessing instruments of

crime.1 Acevedo’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009) (“Anders brief”), and a petition to withdraw as counsel. We grant

counsel’s petition to withdraw and affirm the judgment of sentence.

The following factual summary was obtained from the certified record.

On March 10, 2021, Assaf Issa (“Victim”) was outside his apartment building

in Allentown, Pennsylvania. He was waiting for his wife to arrive home.

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1 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2701(a)(1), and 907(a), respectively. J-S25003-25

Acevedo lived in the same apartment building. While Victim was waiting

outside, Acevedo approached him with a baseball bat. Unprovoked, Acevedo

hit Victim several times with the baseball bat. Victim’s injuries included a large

head laceration, skull fracture, subarachnoid hemorrhage, subdural

hemorrhage, and multiple bruises. At the time of trial, over two years later,

Victim still had numbness in his left hand and right leg from the injuries

Acevedo inflicted. Victim quickly identified Acevedo as his attacker when

interviewed by police at the hospital. Police also interviewed several witnesses

who identified Acevedo as the man who attacked Victim with a baseball bat.

Acevedo was charged on March 10, 2021. After multiple continuances,

Acevedo pled guilty on November 28, 2022. However, at the sentencing

hearing on March 20, 2023, Acevedo’s counsel requested to withdraw from

representation. The trial court granted the request. Acevedo chose to proceed

pro se and requested to withdraw his guilty plea. The trial court granted

Acevedo’s request and scheduled trial for April 17, 2023. On April 3, 2023,

Acevedo filed a motion to dismiss for violation of Rule 600. 2 A hearing was

held on the motion on April 24, 2023. After the hearing, the trial court took

the matter under advisement and issued an order denying the motion on May

17, 2023. Acevedo proceeded to trial held October 16-17, 2023, and the jury

found him guilty as noted above.

2 Pa.R.Crim.P. 600.

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Acevedo was sentenced to an aggregate 10 to 20 years’ incarceration

on February 5, 2024. Acevedo filed a post-sentence motion that the trial court

denied on February 14, 2024. Acevedo filed an appeal but did not comply with

the trial court’s order to file a Rule 1925(b) statement. See Pa.R.A.P. 1925(b).

Acevedo, on June 28, 2024, requested this Court appoint him counsel for his

appeal. This Court ordered the trial court to appoint counsel for Acevedo.

Appointed counsel filed an application for remand on November 7, 2024,

to request transcripts and file a Rule 1925(b) statement. This Court granted

the application on December 10, 2024, and retained jurisdiction. Counsel

obtained the necessary transcripts and filed a notice of intent to file an Anders

brief pursuant to Rule 1925(c)(4). See Pa.R.A.P. 1925(c)(4).

As noted above, counsel has filed an Anders brief. Acevedo has not filed

a response. Counsel identified three issues Acevedo wished to raise on appeal:

(1) sufficiency of the evidence for all four convictions, (2) Rule 600 speedy

trial, and (3) merger of the aggravated assault convictions.

We begin by determining if counsel complied with the dictates of Anders

and Santiago.

When faced with a purported Anders[] brief, this Court may not review the merits of any possible underlying issues without first examining counsel’s request to withdraw. Counsel must comply with the technical requirements for petitioning to withdraw by (1) filing a petition for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) providing a copy of the brief to the appellant; and (3) advising the appellant of the right to retain private counsel, proceed pro se, or raise additional arguments that the appellant considers worthy of the court’s

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attention. In an Anders[] brief, counsel must set forth the issues that the defendant[/appellant] wishes to raise and any other claims necessary to effectuate appellate presentation of those issues.

Additionally, counsel must file a brief that meets the requirements established in Santiago, namely:

(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.

Once counsel has satisfied the above requirements, it is then this Court’s duty to conduct its own review of the trial court’s proceedings and render an independent judgment as to whether the appeal is, in fact, wholly frivolous. This includes an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel.

Commonwealth v. Thompson, 333 A.3d 461, 466 (Pa. Super. 2025)

(quotation marks, italics, brackets, and citations omitted).

Here, counsel complied with the dictates of Anders and Santiago.

Counsel filed an application to withdraw as counsel wherein he notes he made

a conscientious review of the record and determined the appeal is frivolous.

See Application to Withdraw, at 1 (pagination added for ease of reference).

Attached to the application is a letter to Acevedo indicating the brief and

application are enclosed and advising Acevedo that he may hire private

counsel or file a brief pro se with this Court raising any issues he believes are

meritorious. See id. at Appendix A.

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In counsel’s Anders brief, he sets forth the issues Acevedo wanted to

raise, provides a summary of the factual and procedural history with citations

to the record, refers to anything that arguably supports the appeal, concludes

the appeal is frivolous as well as his reasons for said conclusion. See Anders

brief, at 2-13. Counsel provides relevant facts, case law, and statutes on point.

See id. at 5-13. As counsel complied with the requirements, we will conduct

our own review to determine if this appeal is wholly frivolous.

First, Acevedo asserts the evidence was insufficient to sustain his

convictions of aggravated assault, attempting to or causing serious bodily

injury, aggravated assault with a deadly weapon, simple assault, and

possessing instruments of crime.

Our scope and standard of review are 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 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 finder 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.

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Commonwealth v. Kennedy, 332 A.3d 133, 140 (Pa. Super. 2025) (citation

omitted).

First, Acevedo challenges his convictions for aggravated assault. One

aggravated assault conviction required the Commonwealth to prove Acevedo

“attempt[ed] to cause serious bodily injury to another, or cause[d] such injury

intentionally, knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).

“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.” 18

Pa.C.S.A. § 2301.

The second aggravated assault conviction required the Commonwealth

to prove Acevedo “attempt[ed] to cause or intentionally or knowingly cause[d]

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

“Bodily injury” is defined as “[i]mpairment of physical condition or substantial

pain.” 18 Pa.C.S.A. § 2301. “Deadly weapon” is defined as “[a]ny firearm,

whether loaded or unloaded, or any device designed as a weapon and capable

of producing death or serious bodily injury, or any other 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.” Id.

Our Court has consistently held that “[a] baseball bat, when swung at

the head, can be a very deadly weapon, and it is well settled the use of a

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deadly weapon on a vital part of the body is sufficient to establish a specific

intent to kill.” Commonwealth v. Nichols, 692 A.2d 181, 184 (Pa. Super.

1997) (citation and footnote omitted); see also Commonwealth v.

Sinkiewicz, 293 A.3d 681, 692 (Pa. Super. 2023) (noting a baseball bat is a

deadly weapon).

Here, Acevedo swung a baseball bat at Victim’s head and body, causing

a skull fracture, subarachnoid hemorrhage, subdural hemorrhage, bruising,

and issues with numbness in his extremities two years later. Victim and two

eyewitnesses identified Acevedo as the man who assaulted Victim. Clearly,

this evidence was sufficient as to both counts of aggravated assault.

Next, Acevedo asserts the evidence was insufficient for the conviction

of simple assault. Simple assault, as charged here, required the

Commonwealth to prove Acevedo “attempt[ed] to cause or intentionally,

knowingly or recklessly cause[d] bodily injury to another[.]” 18 Pa.C.S.A. §

2701(a)(1). Certainly, if swinging a baseball bat at another’s head is sufficient

evidence of aggravated assault, it is also sufficient evidence of simple assault.

Finally, Acevedo argues the evidence was insufficient as to his conviction

of possessing instruments of crime. For this charge, the Commonwealth was

required to prove Acevedo “possesse[d] any instrument of crime with intent

to employ it criminally.” 18 Pa.C.S.A. § 907(a). “Instrument of crime” is

defined as “[a]nything specially made or specially adapted for criminal use” or

“[a]nything used for criminal purposes and possessed by the actor under

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circumstances not manifestly appropriate for lawful uses it may have.” 18

Pa.C.S.A. § 907(d).

Acevedo used a baseball bat, something not specially made or adapted

for criminal use, to hit Victim in the head and body. This meets the second

definition of instrument of crime: the baseball bat here was used for criminal

purposes (assaulting Victim) and possessed by Acevedo for that criminal

purpose. As counsel correctly notes, Acevedo’s sufficiency challenges are

frivolous.

Next, Acevedo believes the trial court erred in denying his motion to

dismiss for violation of Rule 600. Acevedo filed a pre-trial motion to dismiss

his charges on April 3, 2023. The trial court held a hearing on the motion on

April 24, 2023. At the time of the motion and hearing, Acevedo was proceeding

pro se.

Generally, when a written complaint is filed, trial is required to

commence within 365 days. See Pa.R.Crim.P. 600(A)(2)(a). However, as the

comment to the Rule notes, “[t]he withdrawal of … a guilty plea should be

considered the granting of a new trial for purposes of paragraph (A)(2)(d) of

this [R]ule.” Pa.R.Crim.P. 600 comment. Paragraph (A)(2)(d) provides when

a new trial has been granted, “the new trial shall commence within 365 days

from the date on which the trial court’s order [granting a new trial] is filed.”

Pa.R.Crim.P. 600(A)(2)(d); see also Commonwealth v. Bowes, 839 A.2d

422, 425-26 (Pa. Super. 2003) (quoting the comment to Rule 600 and finding

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a new period of time pursuant to Rule 600(A)(2)(d) began to run when Bowes

withdrew his guilty plea).

Here, the trial court granted Acevedo’s request to withdraw his guilty

plea and, in effect, granted a new trial, on March 20, 2023. At the time

Acevedo filed his motion to dismiss, only 14 days had passed since he was

granted a new trial. As such, counsel is correct that this claim is frivolous.

Finally, Acevedo claims his two aggravated assault convictions should

merge for sentencing. While represented, at sentencing and in a counseled

post-sentence motion, Acevedo argued the two aggravated assault

convictions should merge as there was only one victim. Current counsel is

correct that this claim is frivolous.

Courts are required to determine if sentences merge at sentencing by

applying an elements-based test. See Commonwealth v. Rhoades, 8 A.3d

912, 918 (Pa. Super. 2010). This requires the courts to compare the elements

required for each offense. See id. Here, there is an additional element in

aggravated assault with a deadly weapon that is not included in the

aggravated assault subsection 2702(a)(1): specifically, the use of a deadly

weapon. See id. (“When the two subsections are read together it is apparent

that subsection (4) contains an element that is not found in the greater offense

of subsection (1). Specifically, subsection (4) requires that the assault be

caused or attempted ‘with a deadly weapon.’”) (brackets and citation

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omitted). As the elements differ, the two counts of aggravated assault do not

merge. This claim is frivolous.

After our own independent review, we conclude there are no non-

frivolous issues in the certified record. We agree with counsel that the appeal

is wholly frivolous and grant his request to withdraw.

Petition to withdraw granted. Judgment of sentence affirmed. 3

Date: 9/4/2025

3 On March 4, 2025, Acevedo filed a pro se application seeking to dismiss counsel and proceed pro se. This motion is denied as moot based upon our memorandum granting counsel’s petition to withdraw and because Acevedo filed a similar application on February 11, 2025, which we denied on March 4, 2025.

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