J-S59017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
THOMAS PAUL HUNSBERGER
Appellant No. 3433 EDA 2013
Appeal from the Judgment of Sentence November 18, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000081-2013
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 26, 2014
Thomas Paul Hunsberger appeals from the judgment of sentence
imposed by the Court of Common Pleas of Montgomery County following his
convictions for criminal mischief (M3)1 and disorderly conduct (M3).2
Counsel has petitioned this Court to withdraw her representation of
Hunsberger pursuant to Anders, McClendon and Santiago.3 Upon review,
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 3304(a)(5). 2 18 Pa.C.S. § 5503(a)(1). 3 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S59017-14
withdraw.
This matter stems from an incident of road rage. Early in the morning
of September 28, 2012, Melissah Murchinson was driving on City Avenue in
Lower Merion Township, Montgomery County. At some point, Murchinson
decided to pass Hunsberger, who was driving a green Malibu. As the cars
came next to each other, Hunsberger allegedly began yelling and gesturing
to Murchinson. When Murchinson opened her window, she was met with a
barrage of racial slurs before Hunsberger spit on her car. Murchinson
noticed that Hunsberger was following her and deviated from her destination
and called 911. While on the phone with police dispatch, Murchinson pulled
onto the shoulder of a side street. According to Murchinson, Hunsberger
pulled up behind her, exited his vehicle and approache -
side door. Hunsberger then circled her car, shaking it and yelling erratically,
before approaching the rear passenger door and punching it. After a few
minutes, Hunsberger returned to his car and drove away.
At the direction of police dispatch, Murchinson pulled into a safe
parking lot to wait for the police. Once the police arrived, Murchinson
explained what had transpired. At the same time, Hunsberger went to the
Lower Merion Police station to give his version of the story. Murchinson
subsequently filed a criminal complaint and Hunsberger was arraigned on
February 13, 2013.
-2- J-S59017-14
A bench trial took place on July 11, 2013. After convicting Hunsberger
of criminal mischief and disorderly conduct, the court moved directly to
sentencing an
On July 22, 2013, Hunsberger filed a timely post-sentence motion. On
that same date, Hunsberger filed a pro se notice of appeal. Because of the
pro se filing, the court conducted a Grazier4 hearing on November 13, 2013
to determine whether Hunsberger wished to proceed pro se or with
appointed counsel. After the court advised Hunsberger of his rights, he
chose to proceed with appointed counsel.
On December 16, 2013, the trial court entered an order pursuant to
Pa.R.A.P 1925(b), directing the filing of a concise statement of errors
complained of on appeal. After discovering that the clerk of courts had
incorrectly docketed the Rule 1925(b) order, the trial court extended the
time for Hunsberger to file his concise statement.
counsel filed a statement of intent to file an Anders brief with this Court
pursuant to Pa.R.A.P. 1925(c)(4).
Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005). In order to withdraw pursuant to Anders and McClendon, counsel
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-3- J-S59017-14
must: (1) petition the Court for leave to withdraw, certifying that after a
thorough review of the record, counsel has concluded the issues to be raised
are wholly frivolous; (2) file a brief referring to anything in the record that
might arguably support the appeal; and (3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Santiago, the Pennsylvania Supreme Court altered the
requirements for withdrawal under Anders to mandate the inclusion of a
statement detailing reasons for concluding the appeal is frivolous.
of the record and concluded the appeal is wholly frivolous. Counsel supplied
right to proceed pro se, or with newly-retained counsel, and to raise any
other issues he believes might have merit.5 Counsel also has submitted a
brief, setting out in neutral form two issues of arguable merit. Finally,
counsel has explained, pursuant to the dictates of Santiago, why she
believes the issues to be frivolous. See Anders Brief, at 3. Counsel having
satisfied the procedural requirements for withdrawal, we now conduct our
own review of the proceedings and render an independent judgment as to
5 Hunsberger has not filed a pro se response or brief.
-4- J-S59017-14
whether the appeal is, in fact, wholly frivolous. Commonwealth v. Wright,
846 A.2d 730, 736 (Pa. Super. 2004).
On appeal, Hunsberger presents the following issues for our review:
1. disorderly conduct supported by legally sufficient evidence?
2. Did the trial court abuse its discretion in denying -sentence motion for a new trial based upon the weight of the evidence?
Brief of Appellant, at 5.
We review a challenge to the sufficiency of the evidence as follows:
[W]hether 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
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 trier 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.
Commonwealth v.
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J-S59017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
THOMAS PAUL HUNSBERGER
Appellant No. 3433 EDA 2013
Appeal from the Judgment of Sentence November 18, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000081-2013
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 26, 2014
Thomas Paul Hunsberger appeals from the judgment of sentence
imposed by the Court of Common Pleas of Montgomery County following his
convictions for criminal mischief (M3)1 and disorderly conduct (M3).2
Counsel has petitioned this Court to withdraw her representation of
Hunsberger pursuant to Anders, McClendon and Santiago.3 Upon review,
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 3304(a)(5). 2 18 Pa.C.S. § 5503(a)(1). 3 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S59017-14
withdraw.
This matter stems from an incident of road rage. Early in the morning
of September 28, 2012, Melissah Murchinson was driving on City Avenue in
Lower Merion Township, Montgomery County. At some point, Murchinson
decided to pass Hunsberger, who was driving a green Malibu. As the cars
came next to each other, Hunsberger allegedly began yelling and gesturing
to Murchinson. When Murchinson opened her window, she was met with a
barrage of racial slurs before Hunsberger spit on her car. Murchinson
noticed that Hunsberger was following her and deviated from her destination
and called 911. While on the phone with police dispatch, Murchinson pulled
onto the shoulder of a side street. According to Murchinson, Hunsberger
pulled up behind her, exited his vehicle and approache -
side door. Hunsberger then circled her car, shaking it and yelling erratically,
before approaching the rear passenger door and punching it. After a few
minutes, Hunsberger returned to his car and drove away.
At the direction of police dispatch, Murchinson pulled into a safe
parking lot to wait for the police. Once the police arrived, Murchinson
explained what had transpired. At the same time, Hunsberger went to the
Lower Merion Police station to give his version of the story. Murchinson
subsequently filed a criminal complaint and Hunsberger was arraigned on
February 13, 2013.
-2- J-S59017-14
A bench trial took place on July 11, 2013. After convicting Hunsberger
of criminal mischief and disorderly conduct, the court moved directly to
sentencing an
On July 22, 2013, Hunsberger filed a timely post-sentence motion. On
that same date, Hunsberger filed a pro se notice of appeal. Because of the
pro se filing, the court conducted a Grazier4 hearing on November 13, 2013
to determine whether Hunsberger wished to proceed pro se or with
appointed counsel. After the court advised Hunsberger of his rights, he
chose to proceed with appointed counsel.
On December 16, 2013, the trial court entered an order pursuant to
Pa.R.A.P 1925(b), directing the filing of a concise statement of errors
complained of on appeal. After discovering that the clerk of courts had
incorrectly docketed the Rule 1925(b) order, the trial court extended the
time for Hunsberger to file his concise statement.
counsel filed a statement of intent to file an Anders brief with this Court
pursuant to Pa.R.A.P. 1925(c)(4).
Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005). In order to withdraw pursuant to Anders and McClendon, counsel
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-3- J-S59017-14
must: (1) petition the Court for leave to withdraw, certifying that after a
thorough review of the record, counsel has concluded the issues to be raised
are wholly frivolous; (2) file a brief referring to anything in the record that
might arguably support the appeal; and (3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Santiago, the Pennsylvania Supreme Court altered the
requirements for withdrawal under Anders to mandate the inclusion of a
statement detailing reasons for concluding the appeal is frivolous.
of the record and concluded the appeal is wholly frivolous. Counsel supplied
right to proceed pro se, or with newly-retained counsel, and to raise any
other issues he believes might have merit.5 Counsel also has submitted a
brief, setting out in neutral form two issues of arguable merit. Finally,
counsel has explained, pursuant to the dictates of Santiago, why she
believes the issues to be frivolous. See Anders Brief, at 3. Counsel having
satisfied the procedural requirements for withdrawal, we now conduct our
own review of the proceedings and render an independent judgment as to
5 Hunsberger has not filed a pro se response or brief.
-4- J-S59017-14
whether the appeal is, in fact, wholly frivolous. Commonwealth v. Wright,
846 A.2d 730, 736 (Pa. Super. 2004).
On appeal, Hunsberger presents the following issues for our review:
1. disorderly conduct supported by legally sufficient evidence?
2. Did the trial court abuse its discretion in denying -sentence motion for a new trial based upon the weight of the evidence?
Brief of Appellant, at 5.
We review a challenge to the sufficiency of the evidence as follows:
[W]hether 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
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 trier 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.
Commonwealth v. Caban, 60 A.3d 120, 132 (Pa. Super. 2012).
A person is guilty of criminal mischief if he intentionally damages real
or personal property of another. 18 Pa.C.S. § 3304(a)(5). Here,
Murchinson testified that Hunsberger punched her car and caused damage,
-5- J-S59017-14
after the two had a dispute on the road. The responding police officer
both parties, and issued a citation for disorderly conduct. Hunsberger,
however, denied punching the vehicle. Here, the trial court found the
testimony of Murchinson and the police officer to be credible and found
free to believe all, part or none of the evidence presented. Caban, supra.
Accordingly, the Commonwealth presented sufficient evidence to prove,
beyond a reasonable doubt, that Hunsberger intentionally damaged the
personal property of another. See Commonwealth v. Adams, 882 A.2d
496 (Pa. Super. 2005) (evidence sufficient where credible testimony of
complaining witness and police officer established appellant punched
a
person is guilty of disorderly conduct if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he
engages in fighting or threatening, or in violent or tumultuous behavior. 18
Pa.C.S. § 5503(a)(1). Here, the Commonwealth presented evidence that
Hunsberger was driving on a four-lane thoroughfare during morning rush
evidence further described Hunsberger following Murchinson onto the
shoulder of a side road where he continued to yell at Murchinson as he
circled her car, pulled at the door handles and, finally, punched her car.
-6- J-S59017-14
Again, the court, as trier of fact, was free to believe all, part or none of the
evidence presented. Caban, supra. Here, the trial court found testimony
testimony to be not credible. Accordingly, the Commonwealth presented
sufficient evidence to prove, beyond a reasonable doubt, that Hunsberger
engaged in threatening, violent or tumultuous behavior. See
, 939 A.2d 912 (Pa. Super. 2007) (evidence
sufficient where defendant confronted motorist stopped on road, used
profane language against driver, reaching into vehicle and slapped driver
with pair of gloves).
In his second issue, Hunsberger argues that the trial court erred when
it denied his post-sentence motion for a new trial because the verdict was
against the weight of the evidence. Our standard of review of a weight of
the evidence claim is as follows:
The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses. As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will
justice. Our appellate courts have repeatedly emphasized that
Furthermore,
[W]here the trial court has ruled on the weight claim
underlying question of whether the verdict is against the
-7- J-S59017-14
weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Rabold, 920 A.2d 857, 860-61 (Pa. Super. 2007)
(citations omitted).
Instantly, upon rendering its verdict, the trial court found both of the
credible.
statement and his testimony at trial. The court further noted that the
that his version of the events did not make sense. In contrast, the court
specifically noted the consistencies in the statements provided by
Murchinson, the concessions she made in her testimony relating to damages,
and the fact that she found it necessary to call the police during her
encounter with Hunsberger.
The court, as trier of fact, was free to believe all, part or none of the
evidence presented. Caban, supra. Here, the Honorable William J. Furber,
as fact-finder, was free to conclude from the evidence that Hunsberger
engaged in criminal mischief and disorderly conduct. We discern no abuse
of discretion by the trial court in not finding the verdict to be so contrary to
weight claim fails.
-8- J-S59017-14
Ha
that the appeal is, in fact, wholly frivolous. Wright, supra. Accordingly, we
permit counsel to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/26/2014
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