Com. v. Sims, M.

• Court: Superior Court of Pennsylvania
• Decided: March 19, 2021
• Docket: 377 WDA 2020
• Status: Unpublished

Opinion

J-S55028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MADENA SIMS : : No. 377 WDA 2020 Appellant :

Appeal from the Judgment of Sentence Entered February 10, 2020 In the Court of Common Pleas of Allegheny County at No(s): CP-02-CR-09334-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MADENA SIMS : : Appellant : No. 378 WDA 2020

Appeal from the Judgment of Sentence Entered February 10, 2020 In the Court of Common Pleas of Allegheny County at No(s): CP-02-CR-09333-2019

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED MARCH 19, 2021

Madena Sims (Appellant) appeals from the judgments of sentence

entered in the Allegheny County Court of Common Pleas, at two related

dockets (as detailed infra), following a waiver trial and convictions for

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S55028-20

disorderly conduct.1 Appellant’s court-appointed counsel, James Baker,

Esquire (Plea Counsel)2, has filed a petition to withdraw from representation

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).3 We grant Plea

Counsel’s petition to withdraw, and affirm Appellant’s judgments of sentence.

I. Facts & Procedural History

Appellant and Stella Henderson (Complainant) are neighbors in a

multistory apartment building.4 N.T. Trial, 2/10/20, at 23. Appellant resides

on the third floor of the building, while Complainant occupies a unit on the

first. Id. Tensions between the former friends grew following two separate

events: the first, a physical altercation in which Appellant’s finger was broken;

and the second, a dispute involving the parties’ trash cans. Id. at 15, 25, 35,

77. At the time of the events herein, Appellant was subject to a no-contact

order, imposed as a result of the parties’ trash dispute. Id. at 15-16, 26. On

July 15, 2019, at approximately 10 o’clock in the morning (Workplace

Incident), Complainant was leaving for work when she encountered Appellant,

1 18 Pa.C.S. §§ 5503(a)(1), 5503(a)(4).

2Plea Counsel serves as an Assistant Public Defender at the Office of the Public Defender, Allegheny County.

3 Collectively referred to as “Anders Brief.”

4Appellant was known to the Complainant as “Angel.” N.T. Trial, 2/10/20, at 66 (“Well, I don’t know her as Stella, I know her as Angel.”).

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who “was out her [third story] window waiting for [Complainant] to come

outside[.]” N.T. Trial, at 24. Appellant yelled at Complainant to “get [her]

garbage.” Id. She then began calling Complainant “B-I-T-C-H’s and saying

[Complainant was] a home wrecker[.]” Id. Complainant testified, Appellant

then “pulled her breast out and licked [it] at me. And then [Appellant] got on

the phone with her daughters and told her daughters, ‘Come get this B-I-T-

C-H, I’m tired of her.’” Id. at 25-26, 27-28. Complainant claims she did not

respond, continued towards her vehicle, and left for work. Id. 26, 28.

Approximately 20 minutes later, one of Appellant’s daughters arrived at

Complainant’s workplace and began a conversation with Complainant on the

sidewalk. N.T. Trial, at 28. Appellant arrived moments later with a second

daughter “to jump” Complainant. Id. at 28-29. “[T]hings started getting a

little hostile[,]” so Complainant withdrew to the inside of her workplace. Id.

at 29, 42. Complainant’s boss, as well as a friend who had been walking by

at the time, blocked Appellant and her daughters from entering the store. Id.

at 29, 43. Tensions flared between the parties after Appellant “spit on

[Complainant’s] boss, three times[,]” and Complainant “shook up a two liter

bottle [of soda]” and threw it at Appellant. Id. at 43. Afterwards, Appellant

and her daughters left, and Complainant called the police. Id. at 43, 44.

Later that night, in the early morning hours of July 16, 2019,

Complainant heard Appellant and a friend return to Appellant’s third floor

apartment (2AM Incident). N.T. Trial, at 30. Complainant testified she went

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outside to speak with friends, who had “heard about [Appellant and her friend]

coming to fight [Complainant], so they came to [Complainant’s] house to see

if [she] was okay[.]” Id. At which time, Appellant began yelling from her

third floor window. Id. The argument caused a disturbance loud enough to

prompt a neighbor to phone the police. Id. Sargent John Snyder of the

Wilkinsburg Police Department responded to the scene at roughly 2 o’clock in

the morning. Id. at 11. While questioning two pedestrians, Sgt. Snyder heard

“yelling and screaming coming from around the corner.” Id. Upon arrival to

the apartment building, Sgt. Snyder testified “[Complainant] was talking back,

but the majority of the yelling, the profanity, the vulgarity was coming from

the third-floor window[.]” Id. Sgt. Snyder also testified that while he spoke

with Complainant outside, Appellant continued “yelling out the windows

profanity, nasty stuff. No threats or hates, just nasty stuff . . . calling

[Complainant] a bitch, nasty ho, whore[,] that kind of stuff.” Id. at 13, 31.

Appellant would not answer the door when Sgt. Snyder attempted to speak

with her. Id. at 13-14.

Later that afternoon, again, the parties became disputatious (Phone

Incident). N.T. Trial, at 32. Complainant was sitting on her porch when

Appellant arrived home and allegedly confronted her. Id. at 32. Complainant

called the police again. Id. Complainant testified the police spoke to both

her and Appellant. Id. at 32-33. Not ten minutes after police left,

Complainant alleges to have received a telephone call from Appellant using an

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unlisted number. Id. at 33-34. The caller told Complainant, “You know you’re

getting your ass whooped, right?” Id. at 34. Complainant claims to have

received numerous calls from an unlisted number in the past, all of which she

attributes to Appellant. Id. at 34, 35-37.

Charges against Appellant were filed in the Court of Common Pleas of

Allegheny County at two separate dockets. On October 4, 2019, Appellant

was charged at trial docket CP-02-CR-0009333-2019 (Docket 9333) with

indecent exposure, disorderly conduct, and harassment with respect to the

Workplace and 2AM incidents.5 On October 8, 2019, Appellant was separately

charged with terroristic threats and harassment at docket CP-02-CR-09334-

2019 (Docket 9334) with respect to the Phone Incident. 6 On February 10,

2020, the charges proceeded to a consolidated waiver trial. Prior to the

commencement of trial, the Commonwealth withdrew Appellant’s charge for

indecent exposure. N.T. Trial, at 3. At the conclusion of trial, Appellant’s

remaining charges at Docket 9333 were amended to separate counts of

summary disorderly conduct.7 Id. at 91-92. Likewise, Appellant’s harassment

charge at Docket 9334 was also amended to one count of summary disorderly

5 18 Pa.C.S. §§ 3127(a), 5503(a)(1), 2709(a)(1), respectively.

6 18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1).

7 18 Pa.C.S. § 5503(a)(1).

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conduct.8 Id. Then, at Docket 9333, Appellant was found guilty of summary

disorderly conduct under subsection 5503(a)(1) on two counts. Id. at 93. At

Docket 9334, Appellant was found not guilty of terroristic threats and guilty

of summary disorderly conduct pursuant to subsection 5503(a)(4). Id. at 93.

A sentencing hearing was held immediately following announcement of the

verdicts. N.T. Trial, at 93. At Docket 9333, Appellant received an aggregate

sentence of 180 days’ non-reporting probation, one 90 day term for each of

her two disorderly conduct convictions. See Amended Sentencing Order,

3/17/20. She was also ordered to pay summary court costs of $574.49. Id.

At Docket 9334, Appellant was also sentenced to 90 days’ of non-reporting

probation, to run concurrently with her sentence at Docket 9333. Id. As a

condition of her probation, Appellant was ordered to have no contact with

Complainant. Id.

On March 9, 2020, Appellant submitted an untimely post-sentence

motion along with a Petition to Accept Post-Sentence Motion Nun Pro Tunc

(NPT Petition). In the NPT Petition, Appellant’s trial counsel stated he was

notified by Appellant three days prior “that she desired to file a post-sentence

motion.” Petition to Accept Post-Sentence Motion Nun Pro Tunc, 3/9/20, at 2.

Counsel concluded “a weight of the evidence claim must be raised on

[Appellant’s] case[,] and to deny the NPT Petition would be to “den[y

8 18 Pa.C.S. § 5503(a)(4).

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Appellant] her absolute[,] constitutional right to a direct appeal[.]” Id. at 3,

4. The next day, on March 10, 2020, Appellant’s NPT Petition was denied, as

was her post-sentence motion. See Orders, 3/10/20.

On March 11, 2020, Appellant filed timely notices of appeal from each

of her dockets.9 Appellant was ordered to file a Pa.R.A.P. 1925(b) concise

statement, which she timely filed on June 1, 2020.10 In the concise statement,

Plea Counsel averred he was unable to discover any non-frivolous appealable

matters and stated his intention to file an Anders brief and motion to

withdraw his representation. Appellant’s Concise Statement of Errors

9 Appellant has thus complied with Pa.R.A.P. 341(a) (“[A]n appeal may be taken as of right from any final order of a government unit or trial court.”), and Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (“[W]hen a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed.”).

10 Appellant’s Pa.R.A.P. 1925(b) concise statement was originally due April 2, 2020. See Order 3/12/20. However, owing to the COVID-19 crisis, a judicial emergency was declared in the Fifth Judicial District of Pennsylvania and filing deadlines were suspended from March 16th through June 1, 2020. See Amended Fifth Judicial District Emergency Operations Plan, No. 23 WM 2020, 5/28/20, at 6. Appellant’s deadline to file her concise statement was thus extended from April 2, 2020, to June 19, 2020, pursuant to the court’s amended operations plan. Id. (“New deadlines shall be calculated by adding [78 days] to the original deadline.”). Nevertheless, we acknowledge Appellant’s diligence. On April 28, 2020, before the expiration of the court’s original suspension of filing deadlines, Appellant submitted a request for an extension of time to file her Pa.R.A.P. 1925(b) concise statement. See Petition for Extension of Time to File Concise Statement of Errors Complained of on Appeal, 4/28/20. Appellant’s petition was granted by order of the trial court and her filing deadline was extended to June 1, 2020. See Order, 4/30/20.

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Complained of on Appeal, 6/1/20, at 3. Appellant’s concise statement also

asserts a challenge to the weight and sufficiency of the evidence. Id. at 3-4.

On June 29, 2020, the trial court filed a Pa.R.A.P. 1925(a) supplemental

opinion. Appellant’s cases were consolidated sua sponte by order of this

Court. See Order, 3/18/20. On October 1, 2020, Plea Counsel filed a Petition

for Leave to Withdraw and accompanying Anders brief. To his brief, Plea

Counsel attached a letter sent to Appellant explaining her options to either

“discontinue [the] appeal[,] . . . hire private counsel to prepare an alternative

brief, or” prepare a pro se brief. Anders Brief, Appx. D, 10/1/20, at 4. On

January 5, 2021, this Court received Appellant’s pro se Letter to the Superior

Court in Response to Anders Brief.

II. Petition to Withdraw and Anders Brief

Preliminarily, we must address Plea Counsel’s petition to withdraw and

the accompanying Anders brief, both alleging the instant appeals are

frivolous. Plea Counsel must first “petition to withdraw stating that he or she

has made a conscientious examination of the record and determined that the

appeal would be frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190,

1195 (Pa. Super. 2018) (en banc) (citation omitted). Anders withdrawal may

be granted if, in addition to the petition to withdraw, counsel also files a brief

satisfying the requirements set forth in Santiago, supra. Id. at 1195-96.

This Court must then address the petition to withdraw and accompanied

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Anders brief before we may review the merits of the issues presented therein.

Id.

Counsel’s Anders 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.

Id. at 1196, quoting, Santiago, 978 A.2d at 316. In addition, counsel must

provide the client a copy of the Anders brief, along with a letter advising the

client of the option to retain new counsel or proceed pro se. Yorgey, 188

A.3d at 1195-96 (citation omitted). Indeed:

Anders specifically contemplates that, after counsel files the Anders brief, an appellant may file a pro se brief. . . . [P]art of counsel’s duty under Anders is to advise the appellant of the right to raise points in addition to those in counsel’s Anders brief. Thus, when conducting an Anders review, this Court will consider not only the brief filed by counsel but also any pro se appellate brief.

Commonwealth. v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citations

omitted). “Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court[ ] proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.

2007) (en banc) (citation omitted). If we agree with counsel’s assessment,

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“we may grant counsel’s request to withdraw and dismiss the appeal[.]”

Yorgey, 188 A.3d at 1196, citing Anders, 386 U.S. at 744.

Our thorough review of Plea Counsel’s submissions reveal he has

satisfied the substantive requirements of Anders and Santiago. First, Plea

Counsel submitted a petition to withdraw, stating, “[u]ndersigned [c]ounsel

has made a full and thorough examination of the record and case law to

conclude that [Appellant’s] issues are frivolous.” See Petition for Leave to

Withdraw: Anders Brief, 10/1/20, at 2-3. In addition, Plea Counsel also filed

the required Anders brief, detailing: the relevant factual and procedural

history of the case with citations to the record, Anders Brief at 7-14; his

conclusion the appeal is frivolous, id. at 16, 24; and supporting reasons for

why the appeal is frivolous, id. at 16-23, 24-28. Finally, attached to his brief

is a letter addressed to Appellant advising her of the option to retain new

counsel or proceed pro se. See Anders Brief, Appx. D, at 4; see also

Yorgey, 188 A.3d at 1195-96. We may therefore proceed to conduct an

independent review of the record to determine whether the appeal is wholly

frivolous.11 See Goodwin, 928 A.2d at 291. In his Anders brief, Plea

Counsel raises the following issues:

11While we conclude Plea Counsel’s submissions comply with the substantive requirements of Anders and Santiago, we clarify the technical requirements of the Anders brief. Counsel’s brief must include either a reference to anything in the record arguably supporting the appeal, or an affirmative statement “there were no such references for him to make.” Santiago, 978 A.2d at 360 (“Without one or the other, we are not assured, as Anders

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[1] Is [Appellant’s] claim that there was insufficient evidence to convict her of each count of summary disorderly conduct frivolous?

[2] Is [Appellant’s] claim that the verdict on each summary disorderly conduct was against the weight of the evidence frivolous?

Anders Brief at 6.

III. Sufficiency of the Evidence

Plea Counsel concludes it would be frivolous to challenge Appellant’s

convictions for summary disorderly conduct on the basis of insufficient

evidence. Anders Brief at 16. He asserts Appellant’s conduct “‘disturb[ed]

the peace and dignity of the community.’” Id. at 17, citing, Commonwealth

v. Greene, 189 A.2d 141, 144 (Pa. 1963). Plea Counsel also submits

precedent requires affirmance in cases of “multiple, prolonged and vocal

disagreements with a neighbor[,]” which occur in public areas. Id. at 22. In

response, Appellant simply asserts, “[t]he evidence used is insufficient.”

requires, that counsel fully performed his duty as Santiago’s advocate[.]”). Here, we are satisfied Plea Counsel has “fully performed his duty as [Appellant’s] advocate to independently search the record as a trained advocate with an eye to uncovering appealable error[.]” See Santiago, 978 A.2d at 360. Plea Counsel’s reference to his “full and thorough examination of the record[,]” is evidenced in his “candid assessment of the complete lack of merit in his client’s case,” thereby satisfying the substantive requirements of Anders and Santiago. See Petition for Leave to Withdraw: Anders Brief, 10/1/20, at 2-3; see also Santiago, 978 A.2d at 359. Our independent review of the record confirms Plea Counsel has fulfilled his professional obligations as Appellant’s counsel. See Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020) (in context of Anders withdraw, this Court may overlook procedural deficiencies in appellate court filings to ensure Anders counsel has not overlooked non-frivolous issues).

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Appellant’s pro se Letter to the Superior Court in Response to Anders Brief,

1/5/21, at 4.

Our independent review of the trial court proceedings is guided by well-

established principles:

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 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.

Goodwin, 928 A.2d at 291 (citation omitted). For ease of review, we also set

forth the relevant statutory provisions:

(a) Offense defined.—A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(1) engages in fighting or threatening, or in violent or tumultuous behavior; [or]

* * *

(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

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18 Pa.C.S. § 5503(a)(1), (4).

Here, the trial court explained:

[T]he Commonwealth presented evidence that [Appellant] threatened and shouted profanities towards [Complainant] from the third-floor window, [and] exposed her breast and licked it in an apparent threat towards [Complainant]. [Appellant] was so loud in her shouting at 2:00 a.m. such that a neighbor called the police. Furthermore, the Commonwealth presented evidence that [Appellant] called [Complainant] from a blocked phone number and threatened to “kick her ass.”

Trial Ct. Op., 6/29/20, at 4-5.

Based on our independent, comprehensive review of the trial court

proceedings in the light most favorable to the verdict winner, see Goodwin,

928 A.2d at 291, we decline to find the evidence was insufficient to support

Appellant’s convictions for disorderly conduct. Not only does Appellant

concede she “did by provocation breach the peace of the community[,]” the

testimony introduced at trial reveals she participated in, if not instigated, three

separate events resulting in “vociferous shouting and yelling which

provoke[ed] retaliation and public commotion[.]” See Appellant’s pro se

Letter to the Superior Court in Response to Anders Brief, 1/5/21, at 2; see

also Greene, 189 A.2d at 144. Pertinently, Appellant was subject to a no-

contact order, imposed as a result of the parties’ contentious history. N.T.

Trial, at 15-16, 26. With regard to the Workplace Incident, Appellant

screamed profanities from her third-floor window before Complainant left for

work, id. at 24-28, and then solicited the assistance of her daughters in

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traveling to Complainant’s workplace where Complainant’s boss and friend

had to restrain the parties from attacking each another. Id. at 28-29. Not

only was Complainant’s boss placed in the middle of the parties’ dispute, he

was spit on three times. Id. at 43. The parties’ dispute continued into the

early hours of the morning. Id. at 30. The early morning behavior caused

such a disturbance a neighbor phoned the police and the responding officer

heard screaming from around the corner. Id. at 11, 30. Appellant was brazen

enough to continue screaming “profanity” and “nasty stuff” in the presence of

the Wilkinsburg Police Department, at 2 o’clock in the morning. Id. at 13, 31.

And yet, the dispute did not end. The very next day, another argument

between the parties resulted in a threatening telephone call. Id. at 34.

In consideration of the foregoing, the evidence is not “so weak and

inconclusive that as a matter of law no probability of fact may be drawn from

the combined circumstances.” See Goodwin, 928 A.2d at 291. We also

emphasize the trial court was free to believe all, part, or none of the testimony

introduced at trial. Id. Thus, the evidence was sufficient to establish

Appellant recklessly created the risk of public inconvenience, annoyance, or

alarm by engaging in fighting, threatening, or violent behavior. See 18

Pa.C.S. § 5503(a)(1). The evidence also sufficiently establishes Appellant

recklessly created a hazardous or physically offensive condition which served

no legitimate purpose. See 18 Pa.C.S. § 5503(a)(4); see also Greene, 189

A.2d at 144. Thus, after an independent review of the record, we conclude

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Appellant’s challenge to the sufficiency of the evidence is wholly frivolous.

See Goodwin, 928 A.2d at 291.

IV. Weight of the Evidence

Plea Counsel also avers Appellant’s challenge to the weight of the

evidence is equally frivolous. Anders Brief at 24. He maintains a “mere

conflict in testimony” is not adequate grounds to award a new trial, id. at 25,

quoting, Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000), and

Appellant cannot show that “the trial court abused its discretion by ignoring

evidence of greater weight.” Id. at 27-28, citing, Commonwealth v.

Champney, 832 A.2d 403 (Pa. 2003). In response, Appellant argues, “the

weight of the evidence and sentencing was not fair.” Appellant’s pro se Letter

to the Superior Court in Response to Anders Brief, 1/5/21, at 2. She

adamantly denies the allegations asserted by the Commonwealth, and

maintains her shouting profanity and communicating a threat over the

telephone were all done in self-defense. 12 Id. at 3-4.

12 Appellant also advances two other arguments. The first is a challenge to the effectiveness of her trial counsel. Appellant’s pro se Letter to the Superior Court in Response to Anders Brief, 1/5/21, at 2-4. As the instant case appears before this Court on direct appeal, Appellant’s ineffectiveness claim is misplaced, and must be advanced pursuant to the Post Conviction Relief Act. See 42 Pa.C.S. §§ 9541-9546; see also Commonwealth v. Grant, 813 A.2d 726 (2002) (confirming that, absent certain unusual circumstances, ineffectiveness claims are to be raised via the PCRA and not on direct appeal). The second claim is that she “was charged with [h]arassment twice for the same incident[,] and found guilty, causing Double Jeopardy.” Appellant’s pro se Letter to the Superior Court in Response to Anders Brief, 1/5/21, at 2-4. We note our review is limited to those facts which are contained in the certified

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Before we independently evaluate the legitimacy of Appellant’s weight

challenge, we may, sua sponte, assess whether the challenge properly invokes

this Court’s jurisdiction. See Commonwealth v. Capaldi, 112 A.3d 1242,

1244 (Pa. Super. 2015) (citation omitted).

[A] weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its opinion.

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)

(citations omitted). A post-sentence motion containing a challenge to the

weight of the evidence must be filed within 10 days after the imposition of

sentence. See Pa.R.Crim.P. 607, 702(A)(1). Ordinarily, failure to file a post-

sentence motion within the applicable time constraints results in waiver of the

issues presented therein. Commonwealth v. Wrecks, 931 A.2d 717, 719

(Pa. Super. 2007).

However, a defendant may request nunc pro tunc consideration of an

untimely post-sentence motion within thirty days of the judgment of sentence.

Capaldi, 112 A.3d at 1244. A defendant seeking relief nunc pro tunc must

request consideration of a post-sentence motion nunc pro tunc and the trial

record, and we may not stray dehors the record. Commonwealth v. O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citations omitted). Here, the certified record is entirely lacking in support of Appellant’s challenge. Her claim is therefore not properly before the Court. Id.

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court must expressly grant the nunc pro tunc relief. Id., citing

Commonwealth v. Dreves, 839 A.2d 1122, 1128-29 (Pa. Super. 2003) (en

banc). Moreover, “a trial court’s resolution of the merits of [a] late post-

sentence motion is no substitute for an order expressly granting nunc pro tunc

relief.” Id. (citation omitted).

Applying the preceding standards, we deem the present challenge

waived. First, Appellant’s sentence was imposed on February 10, 2020. She

filed a post-sentence motion challenging the weight of evidence 28 days

later, on March 9th. Appellant also filed a separate and distinct NPT Petition.

Thus, by filing a separate petition requesting relief nunc pro tunc and detailing

the circumstances giving rise to the late filing of her post-sentence motion,

Appellant has satisfied the first prerequisite to receiving nunc pro tunc relief.

See Capaldi, 112 A.3d at 1244.

Even so, Appellant has not secured from the trial court an express grant

of nunc pro tunc relief and has therefore failed to fulfill the second

prerequisite. See Capaldi, 112 A.3d at 1244. On March 10, 2020, Appellant’s

NPT Petition was denied. See Order, 3/10/20. The trial court denied

Appellant’s NPT Petition by striking the word “granted” from the proposed

order and instead wrote, “denied.” See id. Similarly, the trial court struck

the word “granted” from the proposed order attached to Appellant’s untimely

post-sentence motion and cited to the order denying Appellant’s NPT Petition.

Id. Critically, the certified record on appeal contains no order from the trial

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court expressly granting Appellant nunc pro tunc relief.13 See Capaldi, 112

A.3d at 1244. We are therefore without jurisdiction to address Appellant’s

challenge to the weight of the evidence.14 Id. For the foregoing reasons, we

conclude Appellant’s weight claim is frivolous.

Additionally, our independent review of the record reveals no non-

frivolous issues that may be brought on appeal.

Petition to Withdraw granted. Judgments of Sentence Affirmed.

13 Our complete review of the record reveals the trial court proceeded as though the NPT Petition had been granted. See Trial Ct. Op., 6/29/20, at 3. However, stare decisis compels our conclusion that nun pro tunc relief was not expressly conferred. Notwithstanding the trial court’s resolution of Appellant’s untimely post-sentence motion, as discussed above, the certified record on appeal contains no express grant of nunc pro tunc relief. See Capaldi, 112 A.3d at 1244.

14 We acknowledge Plea Counsel’s Anders Brief contained no mention of the trial court’s treatment of the NPT Petition or the absence of an express order granting nunc pro tunc relief. Nonetheless, we find this omission inconsequential to our disposition of the present appeal because Appellant’s underlying weight claim would be frivolous. Our thorough review of the record does not occasion a finding the trial court abused its discretion in the weight afforded the testimony adduced at trial, nor were its judgment manifestly unreasonable. See Widmer, 744 A.2d at 753. For these reasons, if jurisdiction had been properly invoked, we would conclude Appellant’s weight claim is frivolous. See Yorgey, 188 A.3d at 1196.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/19/2021

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