Com. v. Calloway, T.

J. S12042/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY CALLOWAY, :
:
Appellant : No. 1738 EDA 2014

Appeal from the Judgment of Sentence May 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0012040-2012

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JUNE 12, 2015

Appellant, Troy Calloway, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his jury

convictions1 for conspiracy and possession with intent to deliver a controlled

substance2 (“PWID”). His appointed attorney, Todd M. Mosser, Esq.

(“Counsel”), has filed an Anders3 petition for leave to withdraw. Counsel

discusses the following issues: the sufficiency and weight of the evidence,

*
Former Justice specially assigned to the Superior Court.
1
Appellant proceeded pro se at the jury trial.
2
18 Pa.C.S. § 903; 35 P.S. § 780-113(a)(30).
3
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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prosecutorial misconduct, and the propriety of Appellant’s consecutive

aggravated-range sentences. We grant Counsel’s petition and affirm the

judgment of sentence.

We first summarize the relevant procedural history and review

Counsel’s petition to withdraw. On November 20 and 21, 2013, this case

proceeded to a jury trial, at which Appellant proceeded pro se with stand-by

counsel. The jury found Appellant guilty of both charges—PWID and

conspiracy to commit PWID. Appellant subsequently filed pro se motions for

arrest of judgment and extraordinary relief. On May 8, 2014, the court

imposed two consecutive, aggravated-range sentences of three to six years’

imprisonment. In imposing sentences in the aggravated range, the court

noted the instant convictions were Appellant’s seventh for PWID. The court

also denied Appellant’s two pro se motions.

The following day, the court appointed Counsel to represent Appellant

in this appeal. Appellant did not file a post-sentence motion, but on June 5,

2014 filed a pro se notice of appeal. Counsel filed a timely notice of appeal

on his behalf the following day. The court directed Appellant to file a

Pa.R.A.P. 1925(b) statement, and Appellant, although represented by

Counsel, filed a pro se statement setting forth several claims. Counsel

subsequently filed a statement, pursuant to Pa.R.A.P. 1925(c)(4), that he

intended to file an Anders no-merit brief. The trial court issued a statement

that it undertook an independent review of the record and agreed with

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Counsel there were no meritorious issues. On appeal, Appellant has not filed

a response to Counsel’s Anders petition nor a pro se or counseled brief.

This Court has stated:

This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the defendant].

Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
[Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
The 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.

Santiago, 978 A.2d at 361. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the [defendant]
deems worthy of the court[‘]s attention in addition to the
points raised by counsel in the Anders brief.”

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted). If counsel complies with these requirements, “we

will make a full examination of the proceedings in the lower court and render

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an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”

Id. at 882 n.7 (citation omitted).

In the instant appeal, Counsel’s petition to withdraw avers he has

conducted a conscientious review of the transcripts and trial record, believes

this appeal is wholly frivolous, and has advised Appellant of this conclusion

and his intent to seek withdrawal from representation. Counsel has attached

a copy of a letter he sent to Appellant, informing him he may raise any

further claims pro so or with retained counsel. In the brief submitted to this

Court, Counsel summarizes the underlying facts of this case, presented the

claims Appellant wishes to pursue, cites relevant law, and discusses why he

believes the claims are frivolous. We find Counsel has complied with the

requirements of Santiago. See Orellana, 86 A.3d at 880. We thus

examine the record to render an independent judgment as to whether the

appeal is wholly frivolous. See id. at 882 n.7.

The first issue in Counsel’s Anders brief is the sufficiency of the

evidence.4 We note the relevant standard of review:

“[W]e must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt.” . . . [“T]he evidence established at trial need not
preclude every possibility of innocence and the fact-finder

4
“[A] defendant can challenge the sufficiency of the evidence for the first
time on appeal.” Commonwealth v. Gezovich, 7 A.3d 300, 302 n.2 (Pa.
Super. 2010); see also Pa.R.Crim.P. 606(A)(7).

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is free to believe all, part, or none of the evidence
presented.”

The Commonwealth can meet its burden “by wholly
circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.” It is improper for this Court “to
re-weigh the evidence and substitute our judgment for
that of the fact-finder.” Additionally, “the entire record
must be evaluated and all evidence actually received must
be considered.”

Commonwealth v. Watley, 81 A.3d 108, 114 (Pa. Super. 2013) (en banc)

(citations omitted), appeal denied, 95 A.3d 277 (Pa. 2014).

With respect to conspiracy, this Court has stated:

“To sustain a conviction for criminal conspiracy, the
Commonwealth must establish the defendant: 1) entered
into an agreement to commit or aid in an unlawful act with
another person or persons; 2) with a shared criminal
intent; and 3) an overt act was done in furtherance of the
conspiracy.” “The conduct of the parties and the
circumstances surrounding such conduct may create a web
of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.” The conspiratorial agreement
“can be inferred from a variety of circumstances including,
but not limited to, the relation between the parties,
knowledge of and participation in the crime, and the
circumstances and conduct of the parties surrounding the
criminal episode.”

Id. at 116 (citations omitted); see also 18 Pa.C.S. § 903(a)(1)-(2).

In reviewing a claim of insufficient evidence for PWID, this Court has

stated:

[T]he Commonwealth must prove both the possession of
the controlled substance and the intent to deliver the
controlled substance. It is well settled that all the facts

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and circumstances surrounding possession are relevant in
making a determination of whether contraband was
possessed with intent to deliver.

In Pennsylvania, the intent to deliver may be inferred from
possession of a large quantity of controlled substance. It
follows that possession of a small amount of a controlled
substance supports the conclusion that there is an absence
of intent to deliver.

Commonwealth v. Bostick, 958 A.2d 543, 560 (Pa. Super. 2006)

(citations omitted).

We summarize the evidence adduced at trial. Philadelphia Police

Narcotics Strike Force Officer Joseph Domico testified to the following. On

September 15, 2012, “a little after” 9:00 a.m., he was conducting

undercover surveillance of the area at Somerset and Ormes Streets along

with two officers. N.T. Trial, 11/20/13, at 54, 56, 59. They were wearing

plainclothes and sitting in an unmarked vehicle. This location was one of

“the top three drug corner[s] in Philadelphia for the open air sales of

heroin.”5 Around 9:10, Officer Domico observed, from a distance within

thirty feet, Appellant, along with a black male later identified as Kyle Thorne,

and a Hispanic male, Pedro Muniz. Thorne counted money and gave it to

Muniz. Appellant took a packet “from his front hoodie sweat shirt pocket”

and handed it to Thorne, who then “placed [it] down the front of his pants.”

Id. at 62.

5
N.T., 11/20/13, at 57. Officer Domico testified that at this corner alone, on
a daily basis 180 bundles of heroin—with each bundle containing fourteen
packets—are sold, representing “close to” $25,000 in sales. Id.

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“A short time later, a white male” (“Buyer 1”), approached in a BMW

SUV vehicle, exited the vehicle, “yelled over and . . . put up four fingers.” 6

Buyer 1 gave Thorne money in exchange “for items [Thorne] removed from

[the] front of his pants.” Id. Buyer 1 then reentered his vehicle and left.

Officer Domico relayed this information to backup officers. Police Officer

Tracey Cooper, who was serving as backup, testified that two to three

minutes after she received information from Officer Domico, she stopped

Buyer 1 in his BMW. Officer Cooper further stated Buyer 1, the sole

occupant of the vehicle, “discarded . . . through the passenger side window

four blue glassine packets inside a clear ziplock packet stamped” “Finlandia.”

Id. at 157.

At 9:20, a male, later identified as Moises Rivera, approached the

corner, “engaged in conversation,” gave Muniz money, and then “went to

[Appellant] who handed him an object.” Id. at 65. Rivera walked to a gray

car parked on the corner, “went down on a knee[,] reached up and placed

an object . . . under the bumper of that vehicle.” Id. Officer Domico

testified that over the next ten to fifteen minutes, multiple men and women

approached both Mr. Rivera and Mr. Thorne, the two
people that were making the street sales. [Money] was
handed . . . to Mr. Thorne and Mr. Rivera for items that Mr.
Thorne took from the front of his pants where he took the
earlier bag and Mr. Rivera took from under the bumper of
that car [sic].

6
Id. at 62. This male was later identified as Giorgi Baubauad.

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Id. at 66. The alleged buyers “all left westbound” toward train tracks. Id.

Officer Domico testified it was “very easy” for buyers to “walk right down on

the train tracks, use their narcotics,” and leave. Id. He stated: “Police can’t

get them because if we’re stationed here, [the drug sellers will] see us and

immediately shut down.” Id.

At 9:30, a white male (“Buyer 2”) engaged Rivera in conversation and

gave him money. Rivera “then went to the bumper of that car that was

parked on the corner[,] reached up, retrieved objects from that [sic], placed

another object back under that, [and] handed objects to” Buyer 2.7 Buyer 2

then left. Officer Layton Cornish testified that, upon Officer Domico’s order,

he stopped Buyer 2 and recovered three clear ziplock packets with “ice

cream cone symbols,” containing what was later identified as cocaine. Id. at

120-21.

Officer Domico further testified to the following. He ordered the arrest

of the four males on the corner: Appellant, Thorne, Muniz, and Rivera. “As

backup approached . . . from Ormes Street,” Appellant “started to walk that

way,” but when he saw a police car, he walked to an open lot between two

houses. Id. at 69. Officer Domico testified, “[T]here was a fence about this

high [sic],” and Appellant took objects from his pocket, reached over the

7
Id. at 67. This buyer was subsequently identified as John Mulholland.

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fence, and discarded them into the lot.8 Officer Cornish testified that he

arrived on scene, saw Appellant “toss” “[s]mall blue objects” over the fence

into the yard, and stopped Appellant. Id. at 120, 127. Officer Tracey

Cooper recovered $51 from Appellant’s person, and “[f]rom the ground over

the fence,” “four bundles, fifty-six packets of heroin stamped “‘Finlandia’”

were recovered. Id. at 92.

Another officer arrested Rivera as he was reaching under the car

bumper, and recovered $52 from Rivera and a sandwich baggie “containing

twenty-six clear ziplock packets with little ice cream cone stamps,” each

containing cocaine. N.T. Trial, 11/21/13, at 26-27. Officer Domico further

testified that packets of cocaine stamped with ice cream cones were

recovered from the rear bumper of the car. N.T., 11/20/13, at 70. Another

officer arrested Muniz and recovered $928 from his front left pants pocket.

Officer Jeremias Lopez testified that he arrested Thorne and recovered

$123. N.T., 11/21/13, at 7-8. On cross-examination, Officer Lopez testified

he did not recover any drugs from Thorne and did not see Appellant give

Thorne anything.

Finally, the Commonwealth presented a Narcotics Strike Force officer

as an expert witness. He opined that based on the amount of heroin in the

8
Id. at 69, 71, 74. The Commonwealth described Officer Domico’s gesture
as “[i]ndicating with the left hand, with the back of the hand facing away
from the side of the body and lifting over the head level with the open hand,
and then just with a quick hand movement.” Id. at 69.

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fifty-six packets—a total of 1.657 grams—and the manner of packaging, the

packets were intended to be distributed. Id. at 50-52 (“If somebody was to

buy that on the street in bulk, they would buy it in bulk. They wouldn’t buy

it packaged like that. . . . It would be [approximately $200] cheaper to buy

in bulk form.”).

Appellant did not testify, but called Officer Domico back to the stand

as his sole witness. In his closing argument, Appellant emphasized, inter

alia, inconsistencies between Officer Domico’s and Officer Cornish’s

testimony as to what he, Appellant, was wearing at the time of the

incident—a brown hoodie versus a black and gray jacket.9 Id. at 97.

In reviewing the evidence in the light most favorable to the

Commonwealth, we hold there was sufficient evidence for the jury to find

beyond a reasonable doubt that Appellant committed both conspiracy and

PWID. See Watley, 81 A.3d at 114. Appellant was not a mere bystander

to the activity on the drug corner, which, according to Officer Domico, was a

high drug area. Instead, all of the evidenced cited above sufficiently created

a “web of evidence linking [Appellant] to the alleged conspiracy beyond a

reasonable doubt.” See id. at 116. There was sufficient evidence for the

jury to conclude Appellant was in possession of heroin, entered into an

9
In closing argument, Appellant also (1) questioned the ability of an officer,
who has supposedly arrested thousands of people, to recall the events from
an incident fourteen months earlier; and (2) questioned why no photographs
or video was taken during the surveillance.

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agreement with others to distribute heroin, aided in the distribution of

heroin, and undertook an overt act in furtherance of the conspiracy. See

Pa.C.S. § 903(a); Watley, 81 A.3d at 116; Bostick, 958 A.2d at 560.

Thus, we agree with Counsel that this issue is meritless.

The second issue presented in Counsel’s Anders brief is the weight of

the evidence. Counsel suggests this issue is waived for Appellant’s failure to

preserve it in a post trial motion. See Pa.R.Crim.P. 607(A)(1) (requiring

claim that verdict was against weight of evidence to be raised with trial

judge orally or in written motion before sentencing or in post-sentence

motion), cmt. (“The purpose of this rule is to make it clear that a challenge

to the weight of the evidence must be raised with the trial judge or it will be

waived.”). We disagree, and instead find Appellant raised a weight claim in

his pre-sentence pro se motion for arrest of judgment. That motion cited

discrepancies in the officers’ description of his jacket, the inconsistency

between testimony that he threw items over the fence and testimony that he

“dropped” them, and Officer Cooper’s “state[ment] on the record that she . .

. was chasing someone before she arrested [Appellant] but never mentioned

catching that person.” Appellant’s Mot. for Arrest of J., 2/10/14, at 3-5.

Nevertheless, we find no merit in any weight claim.

This Court has stated:

The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witness. An appellate court cannot substitute its

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judgment for that of the finder of fact. Thus, we
may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of
justice. Moreover, where the trial court has ruled on
the weight claim below, an appellate court’s role is
not to consider the underlying question of whether
the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on
the weight claim.

[G]iven the primary role of the jury in determining
questions of credibility and evidentiary weight, this . . .
extraordinary power vested in trial judges to upset a jury
verdict on grounds of evidentiary weight is very narrowly
circumscribed.”

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013)

(citations omitted); see also Pa.R.Crim.P. 607, cmt. (“Appellate review of a

weight of the evidence claim is limited to a review of the judge’s exercise of

discretion.”).

With respect to the officers’ description of Appellant’s clothing, we note

the following testimony at trial. On direct examination, Officer Domico

stated Appellant was wearing a “dark colored” “hooded sweat shirt with a

pocket in front.” N.T., 11/20/13, at 74. Officer Domico stated the same on

cross-examination, and when asked specifically, “What color was this

hoodie?”, he responded “It was dark. I believed it to be brown.” Id. at 88.

Officer Cornish likewise testified Appellant wore “a dark hoodie.” Id. at 137-

38. Officer Cooper, however, testified that she completed a biographical

information report of Appellant while Appellant was in the back seat of her

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police vehicle. Id. at 169. Officer Cooper’s report stated Appellant was

wearing a black and gray sweat jacket. Id.

However, we consider the officers’ additional testimony concerning

their observation and identification of Appellant. Officer Domico was

conducting undercover surveillance from a car parked across the street,

“within thirty feet” of Appellant and the other men. Id. at 60. It was sunny,

there was nothing obstructing his view, and Officer Domico did not lose sight

of Appellant during the surveillance. Id. at 60, 61, 85. Officer Cooper, who

handcuffed Appellant, identified him at trial. Id. at 159, 160. Any

discrepancies in the evidence were to be resolved by the jury, which was

“free to believe all, part, or none of the evidence.” See Collins, 70 A.3d at

1251. We resolve Appellant’s argument that the officers’ characterization of

his disposal of the packets—by throwing or dropping—in the same manner.

The jury was free to weigh any inconsistencies in the evidence. See id.

With respect to Appellant’s claim that Officer Cooper was chasing

someone else before she arrested him, we note the following. At trial, she

testified as follows concerning her response to Officer Domico’s directions “to

arrest the dealers:”

I was running up the street to actually go get someone
else and [Appellant] was coming back down towards me.
Police Officer Cornish actually got to him first. I actually
ran past Cornish[,] and Cornish called me back because he
didn’t have any handcuffs. At that time I handcuffed
[Appellant].

N.T., 11/20/13, at 160. Officer Cornish told Officer Cooper he saw Appellant

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throw something and pointed to where Appellant threw it. Officer Cooper

then recovered “items from the bushes in the grassy area.” Id. at 161.

Officer Cooper did not, however, witness Appellant throwing the items. Id.

The jury was free to weigh Officer Cooper’s statements that she was

“running up the street to . . . go get someone else” and that she did not

observe Appellant discarding anything over the fence. See Collins, 70 A.3d

at 1251; N.T., 11/20/13, at 160. We conclude the jury’s verdict does not

“shock one’s sense of justice,” and thus the trial court did not abuse its

discretion in denying Appellant’s motion for arrest of judgment. See

Collins, 70 A.3d at 1251. Accordingly, we agree with Counsel that any

weight of the evidence claim is meritless.

The third claim in Counsel’s Anders brief is prosecutorial misconduct.

As Counsel points out, this claim is articulated in Appellant’s pro se 1925(b)

as, “Prosecutorial misconduct,” without any further explanation. See

Appellant’s Concise Statement at 1. After careful review of the trial

transcript, we agree with Counsel that Appellant did not lodge any objections

during the Commonwealth’s opening and closing arguments or trial

proceedings. See N.T., 11/20/13, at 41-53; N.T., 11/21/13, at 101-33. We

further agree, accordingly, that any claim of prosecutorial misconduct is

waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”);

Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010) (stating failure to

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raise contemporaneous objection to prosecutor’s comment at trial waives

any claim of error).

The fourth issue in Counsel’s Anders brief is the propriety of

Appellant’s sentence. As stated above, the court imposed two consecutive

sentences of three to six years’ imprisonment, which were in the

aggravated-range. Appellant’s pro se 1925(b) statement stated, “Two (2)

consecutive sentences of 3-to-6 years is a violation of the Appellant’s

Constitutional Rights, which were designed to protect the people from ‘cruel

and unusual punishment.’” Appellant’s Concise Statement of Errors

Complained of on Appeal at 2. Although Appellant’s claim is vague, to the

extent he challenges the consecutive nature and length of the sentences, his

claim goes to the discretionary aspect of his sentence. See

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).

However, Appellant did not raise any such claim before the trial court, either

at sentencing or in a post-sentence motion. Thus, we agree with Counsel

that Appellant has waived this sentencing claim. See id. at 132 (stating

right to appellate review of discretionary aspects of sentence is not absolute,

and defendant must, inter alia, preserve issue at sentencing or in motion to

reconsider and modify sentence). Appellant has likewise waived any

challenge to the imposition of an aggravated-range sentence. See

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

The last issue presented in Counsel’s Anders brief is a claim of

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ineffective assistance of trial counsel. Appellant’s pro se Rule 1925(b)

statement cited ineffective assistance of pre-trial, court-appointed counsel,

Carl Reginald Johnson. We further note that at trial, Appellant proceeded

pro se, with Patrick Link, Esq., acting as standby counsel. Nevertheless, in

this appeal, Counsel correctly notes that generally, a claim of ineffectiveness

will not be heard on direct appeal. See Commonwealth v. Holmes, 79

A.3d 562, 563 (Pa. 2013) (holding Grant’s10 general rule—of deferring

claims of ineffective assistance of counsel to Post Conviction Relief Act

review—remains pertinent law). The trial court did not hear Appellant’s

ineffectiveness claims, and consequently we do not consider any, without

prejudice for Appellant to raise them in a Post Conviction Relief Act11

proceeding.

After an independent review of the trial record, including the trial and

sentencing transcripts, we find no other issues meritorious of relief.

Accordingly, we grant Counsel’s petition to withdraw and affirm the

judgment of sentence.

Counsel’s petition to withdraw from representation granted. Judgment

of sentence affirmed.

10
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
11
42 Pa.C.S. §§ 9541-9546.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/12/2015

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