Com. v. Branch, T.
CourtSuperior Court of Pennsylvania
Date FiledOctober 22, 2026
Docket294 EDA 2025
JudgeBowes
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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
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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
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1 This Court has reviewed the video.
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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),
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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).
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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.
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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)
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[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
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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).
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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;
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(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
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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.
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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.
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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.
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