Commonwealth v. Tukhi
149 A.3d 881
| Pa. Super. Ct. | 2016Background
- At ~2:00 AM on April 23, 2014, Joseph Brandon went to Crown Fried Chicken in Philadelphia seeking work; Javed Tukhi worked behind the counter.
- After Brandon swept and mopped for an agreement of payment, Tukhi allegedly reneged, offered food instead, and taunted Brandon; Brandon overturned a trash can in response.
- Tukhi allegedly picked up a 3–4 foot iron pipe (used for security gates), jumped the counter, and struck Brandon’s arm multiple times, fracturing it and requiring a cast for ~2 months.
- Brandon reported the assault to police; Tukhi was later arrested after Brandon located him and notified officers.
- At a non-jury trial Tukhi was convicted of aggravated assault, simple assault, and possession of an instrument of crime; he received an aggregate sentence of 9 to 23 months (house arrest) followed by 3 years’ probation.
- Appellate counsel filed an Anders brief and petition to withdraw; the Superior Court found counsel largely complied with Anders but identified a potentially non-frivolous issue and denied withdrawal, remanding for briefing on that issue.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Tukhi) | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault, simple assault, possession of an instrument of crime | Brandon’s testimony and circumstantial evidence establish Tukhi struck him with a metal pipe causing a broken arm | Tukhi disputes presence/use of a metal pipe and attacks Brandon’s credibility; defense witnesses denied seeing a rod or blows | Convictions upheld: evidence (including eyewitness testimony) was sufficient when viewed in favor of the Commonwealth |
| Discretionary aspects of sentence | Sentence was lawful and within court’s discretion | Tukhi contended sentence was manifestly excessive | Issue waived for failure to preserve at sentencing or move to modify; thus frivolous on direct appeal |
| Ineffective assistance of trial counsel for not calling witnesses / not preserving weight claim | Not argued by Commonwealth on direct appeal | Tukhi alleges counsel failed to present favorable witnesses and failed to preserve weight-of-evidence claim | Ineffectiveness claims premature on direct appeal and should be raised in PCRA; frivolous on direct appeal absent exceptional circumstances |
| Adequacy of advisal of post-sentence rights | Court complied with rule requirements | Tukhi argues he was not adequately advised and thus lost opportunity to file post-sentence motions preserving claims | Superior Court found counsel’s on-record advisal was incomplete/unclear; identified this as a potentially non-frivolous issue, denied counsel’s withdrawal, and remanded for briefing on this point |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedural requirements when counsel seeks to withdraw on appeal)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (Anders brief content requirements in Pennsylvania)
- Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (procedures when counsel seeks to withdraw under Anders)
- Commonwealth v. Franklin, 69 A.3d 719 (Pa. Super. 2013) (standard for reviewing sufficiency of the evidence)
- Commonwealth v. Scullin, 607 A.2d 750 (Pa. Super. 1992) (objects not normally deadly weapons may become so by use)
- Commonwealth v. Rhoades, 8 A.3d 912 (Pa. Super. 2010) (context can render an otherwise innocuous item a deadly weapon)
- Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (ineffectiveness claims generally deferred to PCRA review)
- Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (framework for adjudicating ineffectiveness claims on direct appeal)
- Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008) (waived issues on appeal are frivolous)
- Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013) (four-part test for discretionary-aspect sentencing review)