Full Opinion

J-S27003-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TRACEY BRANCH : : Appellant : No. 294 EDA 2025 Appeal from the Judgment of Sentence Entered December 20, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005487-2023 BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J. MEMORANDUM BY BOWES, J.: FILED OCTOBER 22, 2026 Tracey Branch appeals from the judgment of sentence of two years of probation imposed after she was found guilty at a bench trial of simple assault, recklessly endangering another person (“REAP”), and two counts of possession of an instrument of crime (“PIC”). Appellant’s counsel, Scott Gessner, Esquire, has filed a petition to withdraw as counsel and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Having identified an issue of arguable merit, we deny counsel’s petition to withdraw and direct Attorney Gessner to file an advocate’s brief. At approximately 10:30 a.m. on June 11, 2023, Appellant attacked her grandmother’s next-door neighbor, Eugene Burnett, with whom she had an acrimonious relationship. Her grandmother and Mr. Burnett lived in adjoining rowhouses that shared a staircase to the respective front porches. On the J-S27003-26 morning in question, while Appellant and Mr. Burnett were on the sidewalk of their street, Appellant sprayed him in the face with mace, punched him in the back of the head multiple times as he fled towards his house, and struck him in the head with a discarded wooden plank from a construction project at a nearby home. Appellant left the area before police arrived. Mr. Burnett was bleeding from the head and sustained laceration injuries that were treated at the hospital but did not require stitches or extended medical care. As a result, Appellant was arrested and charged with the above-mentioned crimes, as well as aggravated assault. Appellant waived her right to a jury and proceeded instead to a bench trial. The prosecution called Mr. Burnett, who testified to the above, and played a short video from a Ring camera that captured part of the attack in which Appellant wielded the piece of lumber. 1 In her defense, Appellant testified and presented as a fact witness her neighbor Evelyn Benson. According to them, Mr. Burnett began spewing racist insults at Appellant as she stood outside her car in front of Ms. Benson’s home. When Appellant objected to this treatment, Mr. Burnett threateningly pulled out a knife, and she maced him. Appellant attested that she slipped as Appellant charged at her, and when she jumped up, she punched him so he would stop. As they both were attempting to retreat to their respective homes, she fell again. Mr. Burnett stood over her with the knife, so she picked up part of a broken ____________________________________________ 1 This Court has reviewed the video. -2- J-S27003-26 wooden window frame from a construction project and hit him with it. Undeterred, he kept coming towards her, so she continued to hit Mr. Burnett until he sat down on the steps of his home. Appellant stated that she left the area at that point. The parties stipulated that two character witnesses who did not see the incident would testify to Appellant’s reputation for being a law-abiding member of the community. After hearing closing arguments, the court acquitted Appellant of aggravated assault, but otherwise found her guilty as charged. Sentencing was deferred for preparation of a pre-sentence investigation (“PSI”) report, but in the meantime the court entered an order for Appellant to stay away from Mr. Burnett and his residence. At the onset of the sentencing hearing, Appellant orally moved for extraordinary relief, arguing that the trial court improperly placed the burden of proof solely upon Appellant to prove self-defense, instead of shifting the burden to the Commonwealth to disprove her justification defense after she raised it. See N.T. Sentencing, 12/20/24, at 4-6. Following argument, the court denied the motion and proceeded to sentencing. Prior to imposing her sentence, the court considered, inter alia, Appellant’s PSI report. The Commonwealth read Mr. Burnett’s statement and Appellant submitted several letters from individuals on her behalf. Additionally, Appellant spoke about her volatile history with Mr. Burnett. The court set concurrent terms of two years of probation at each count and ordered Appellant to relinquish her firearms, pursuant to 18 Pa.C.S. § 6105(c)(9), -3- J-S27003-26 explaining that she was convicted of a misdemeanor crime of domestic violence. Id. at 29-31. Appellant challenged the domestic violence designation because it impacted her employment. Id. at 35-36. The court told her it could not answer her question about its impact, but granted counsel’s request to appoint a new attorney for purposes of filing an appeal. While not occurring that day, the court eventually appointed Attorney Gessner to represent Appellant. No party filed post-sentence motions. This timely appeal followed.2 In response to the court’s order,3 Attorney Gessner submitted a statement pursuant to Pa.R.A.P. 1925(c)(4), expressing his intent to file an Anders brief in this Court. Consequently, the trial court elected not to file a Rule 1925(a) opinion. As noted, Attorney Gessner has filed an Anders brief and petition to withdraw. Thus, we begin with the well- settled principles governing our review of Anders cases: Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might ____________________________________________ 2 The appeal was timely, despite being filed on the thirty-second day after her judgment of sentence was imposed, because the thirtieth and thirty-first days fell, respectively, on a Sunday and a federal holiday. See 1 Pa.C.S. § 1908 (providing that “[w]hen any period of time is referred to in any statute, . . . [w]henever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation”). 3 We remind the trial court to include in its order “both the place the appellant can serve the Statement in person and the address to which the appellant can mail the Statement.” Pa.R.A.P. 1925(b)(3)(iii). -4- J-S27003-26 arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof[.] Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention. If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. .... In the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel 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. Commonwealth v. Falcey, 310 A.3d 313, 314–15 (Pa.Super. 2024) (cleaned up). Our initial review in accordance with the foregoing revealed that counsel’s letter to Appellant was deficient. Having complied with our directive to fix the errors within the letter, our review now confirms that counsel has satisfied his technical Anders obligations. Appellant has not retained new counsel nor filed a pro se response. -5- J-S27003-26 In the Anders brief, Attorney Gessner identifies two issues as having been preserved and arguably supporting an appeal, namely, the sufficiency of the evidence and the legality of Appellant’s sentence. See Anders brief at 8. We begin with the sufficiency claim, which we review mindful of the following: A claim challenging the sufficiency of the evidence is a question of law. Our standard of review is de novo, and our scope of review is plenary. 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. 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. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the factfinder. Commonwealth v. Wellmon, 345 A.3d 370, 373 (Pa.Super. 2025) (cleaned up). Turning to the elements of the crimes involved herein, we note that “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) (cleaned up). To be convicted of REAP, the Commonwealth must prove beyond a reasonable doubt that the defendant “recklessly engage[d] in conduct which place[d] or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. Finally, an individual commits PIC “if he possesses any instrument of crime with intent to employ it criminally.” 18 Pa.C.S. § 907(a). An “instrument of crime” is further defined as: “(1) -6- J-S27003-26 [a]nything specially made or specially adapted for criminal use[; or] (2) [a]nything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.” Id. The two objects of Appellant’s PIC convictions were the mace and the piece of construction lumber. The remaining charges concerned her actions in macing Mr. Burnett, punching him in the head, and hitting him in the head with the wooden plank. Viewing the evidence in the light most favorable to the Commonwealth, which would essentially be Mr. Burnett’s version of events outlined at the outset of this memorandum, Appellant attacked Mr. Burnett without provocation, emptied a bottle of mace into his face and then chased him and struck him in the head multiple times with her fists and a piece of lumber, causing bodily injury. This evidence was sufficient to support her convictions for simple assault, REAP, and PIC, as well as to disprove her invocation of self-defense. See Commonwealth v. Kennedy, 332 A.3d 133, 141 (Pa.Super. 2025) (outlining that one way to defeat a self-defense justification is for the Commonwealth to prove beyond a reasonable doubt “that the defendant provoked the use of force” (cleaned up)). Accordingly, we agree with counsel that there is no basis in law or fact to support a sufficiency claim. Next, counsel addresses the legality of Appellant’s sentence. While observing that the trial court applied the incorrect version of the guidelines, Attorney Gessner contends that the sentence is nonetheless unassailable as it -7- J-S27003-26 fell below the statutory maximum. See Anders brief at 11 n.1; id. at 11-12. It is well-settled that “a claim that the trial court erroneously imposed an illegal sentence is a question of law and, as such, our scope of review is plenary and our standard of review is de novo.” Commonwealth v. Lee, 357 A.3d 1259, 1263 (Pa.Super. 2026) (en banc) (cleaned up). Our High Court has summarized the types of sentencing legality claims in the following manner: Proceeding from the general principle that a sentence is unlawful if the sentencing court lacks the legal authority to impose that sanction, our law recognizes four broad types of legality challenges: (1) a claim that a sentence was imposed pursuant to a facially unconstitutional sentencing statute; (2) an assertion that statutory preconditions to the court’s sentencing authority were not present; (3) a challenge alleging a violation or nonfulfillment of a substantive, constitutional restriction upon the court’s authority to impose the sentence; and (4) an argument that the statutory support for the conviction is void ab initio. Commonwealth v. Prinkey, 277 A.3d 554, 556 (Pa. 2022) (footnote omitted). The Court elaborated as follows: In each, the inquiry is whether, assuming the appellant’s claim prevails, the result would be that the trial court lacked authority to impose the sentence at issue. If so, then the appellant’s challenge implicates the legality of his sentence. Conversely, if the challenge is not to the existence of certain authority but to the exercise of that authority, then the challenge goes to the discretionary aspects of a sentence, not to its legality. Relatedly, as the nomenclature suggests, all legality challenges implicate a question of law, which is reviewed by appellate courts de novo. A mere disagreement with the trial court’s weighing of various sentencing considerations, on the other hand, is a claim implicating only the discretionary aspects of sentencing. Id. at 563–64 (cleaned up). -8- J-S27003-26 Since Appellant did not preserve any challenges at sentencing, her failure to file a post-sentence motion has rendered any discretionary claims waived. As for an unwaivable legality of sentencing claim, the record suggests that the trial court lacked the authority to sentence Appellant to relinquish her firearms pursuant to § 6105(c)(9). Section 6105 provides in pertinent part as follows: (a) Offense defined.-- (1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth. .... (c) Other persons.--In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a): .... (9) A person who is prohibited from possessing or acquiring a firearm under 18 U.S.C. § 922(g)(9). If the offense which resulted in the prohibition under 18 U.S.C. § 922(g)(9) was committed, as provided in 18 U.S.C. § 921(a)(33)(A)(ii) (relating to definitions), by a person in any of the following relationships: (i) the current or former spouse, parent or guardian of the victim; (ii) a person with whom the victim shares a child in common; -9- J-S27003-26 (iii) a person who cohabits with or has cohabited with the victim as a spouse, parent or guardian; or (iv) a person similarly situated to a spouse, parent or guardian of the victim; then the relationship need not be an element of the offense to meet the requirements of this paragraph. 18 Pa.C.S. § 6105. The referenced portion of § 922 states: “It shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence . . . to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(9). Except in circumstances not applicable here, the phrase “misdemeanor crime of domestic violence” in § 922(g)(9) refers to an offense that is classified as a misdemeanor and: has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim. 18 U.S.C. § 921(A)(33). Upon even a cursory review, it is plain to us that Appellant was not convicted of a misdemeanor crime of domestic violence where she assaulted her neighbor, with whom she had no romantic or kin relationship. Indeed, the record sub judice is bereft of any indication that Appellant and Mr. Burnett occupied any such domestic relationship. We cannot ascertain on the record - 10 - J-S27003-26 presently before us why the court ordered relinquishment of Appellant’s firearms pursuant to § 6105(c)(9), and it appears that Appellant has a viable argument that the trial court lacked statutory authority to order relinquishment on that basis. See Commonwealth v. Getkin, 251 A.3d 425, 432 (Pa.Super. 2021) (vacating portion of sentence disqualifying defendant from possessing a firearm because he was not in such a relationship with the victim that would transform his crimes into ones of domestic violence). In light of the facial plausibility of this sentencing challenge, we are unconvinced at this stage that the appeal is wholly frivolous. 4 Since there is a good-faith argument to be made with respect to this claim, we deny the petition to withdraw and direct counsel, within thirty days of entry of this memorandum, to file an advocate’s brief. The Commonwealth shall submit a responsive brief within thirty days of counsel’s new filing. ____________________________________________ 4 We note that this does not implicate a challenge to remove a firearm disability, but rather concerns the authority to impose the disability in the first place. Our research has disclosed that this Court has not squarely placed such a claim under the umbrella of illegal sentencing. In Getkin, the defendant raised his challenge to the firearms disqualification as one sounding in statutory interpretation. In another case, we declined to decide whether the confiscation of a firearm not used in the underlying crime without compensation was an illegal sentencing claim, instead considering it through the lens of ineffective assistance of counsel for failing to raise and preserve the issue. See Commonwealth v. Arthur, 559 A.2d 936, 937 (Pa.Super. 1989). However, as detailed above, it is beyond peradventure that a sentence is illegal if it is imposed without statutory authority. See Prinkey, 277 A.3d at 563-64. We leave it to counsel’s advocacy to develop not only the merits of this claim but also whether it implicates the legality of Appellant’s sentence or must be raised as another type of challenge. - 11 - J-S27003-26 Petition to withdraw denied. Counsel directed to file an advocate’s brief within thirty days of this memorandum. Commonwealth to file an appellee’s brief within thirty days thereafter. Jurisdiction retained. - 12 -