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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD STRATTON
Appellant No. 112 EDA 2015
Appeal from the Judgment of Sentence December 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002918-2010
BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 02, 2016
Donald Stratton appeals from the judgment of sentence entered in the
Court of Common Pleas of Philadelphia County. After our review, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
On November 3, 2009, at approximately 2:15 p.m., Philadelphia Police
Officer Charles Kapusniak, a twelve-year member of the Narcotics Strike
Force, and Officer Joseph McCauley began surveillance in the area of the
intersection of 17th Street and Jefferson Street in Philadelphia. Officer
Kapusniak testified that from his angle he observed a male, Eric Daniels,
approach another male, later identified as Stratton, and hand him U.S.
Currency. Officer Kapusniak then observed Stratton walk to the passenger
side of a white SUV, open the door and lean inside. Officer Kapusniak
testified that he could see Stratton pouring small items from a white pill
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bottle into his hand, walk back to Daniels and hand the items to Daniels.
The two officers then drove up to Stratton and Daniels. They searched them
and seized $400.00 from Stratton and two Percocet pills from Daniels. After
searching the white SUV, officers retrieved a white pill bottle from the front
passenger area that contained four Percocet pills similar to those in Daniels’
possession.
On September 10, 2014, a jury convicted Stratton of possession of a
controlled substance with intent to deliver.1 The Honorable Donna Woelpper
sentenced Stratton to two to four years’ imprisonment. Stratton’s counsel
filed a notice of appeal. On January 8, 2015, the court issued an order
pursuant to Pa.R.A.P. 1925(b) directing Stratton to file a Concise Statement
of Errors Complained of on Appeal. Defense counsel, Shawn Page, Esquire,
failed to comply. On March 10, 2015, Judge Woelpper filed an opinion,
concluding that Stratton had waived any claims on appeal for failing to file a
Rule 1925(b) Statement.
On March 23, 2015, Attorney Page filed a petition to withdraw his
representation. This Court, on March 27, 2015, issued an order granting
Attorney Page’s motion to withdraw and ordering the trial court to determine
Stratton’s eligibility for appointment of counsel. Thereafter, the court
appointed John Belli, Esquire, to represent Stratton. Attorney Belli filed a
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1
35 P.S. § 780-113(a)(30).
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motion on May 4, 2015 seeking remand of the case and permission to file a
Rule 1925(b) Statement nunc pro tunc. See Pa.R.A.P. 1925(c)(1), (c)(3).
On June 3, 2015, this Court granted the petition for remand.
On June 15, 2015, Attorney Belli filed a nunc pro tunc Rule 1925(b)
Statement, indicating, pursuant to Pa.R.A.P. 1925(c)(4), his intent to file a
motion to withdraw pursuant to Anders,2 and stating that Stratton wished
to raise a weight of the evidence claim. On June 21, 2015, Judge Woelpper
filed her opinion, concluding that the weight issue was waived because it
was not raised post-trial before the court or in a post-sentence motion.
See Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003);
Pa.R.Crim.P. 607(A). This appeal followed. On August 24, 2015, counsel
filed an Anders brief as well as a motion to withdraw.
In order to withdraw pursuant to Anders and McClendon, counsel
must: 1) petition the Court for leave to withdraw, certifying that after a
thorough review of the record, counsel has concluded the issues to be raised
are wholly frivolous; 2) file a brief referring to anything in the record that
might arguably support an appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
____________________________________________
2
Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981) and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the
Pennsylvania Supreme Court held that, in order to withdraw under Anders,
counsel must also state his reasons for concluding his client’s appeal is
frivolous.
Here, counsel’s petition states that he has examined the record and
concluded the appeal is wholly frivolous. Counsel states that he has provided
Stratton with a copy of the brief and a letter explaining Stratton’s right to
proceed pro se, or with newly retained counsel, and to raise any other issues
he believes might have merit. See Petition to Withdraw, 8/24/15, at 2.
Counsel has also filed a brief in which he repeats his assertion that there are
no non-frivolous issues to be raised. See Anders brief, 8/24/15, at 7-13.
Accordingly, we find that counsel has substantially complied with the
procedural requirements for withdrawal. We now review the issue raised in
the Anders brief:
Whether the verdict was against the weight of the
evidence because the testimony given by two police
officers was contradictory with regard to whether money
and drugs were exchanged between [Stratton] and the
alleged buyer and regarding which officer was driving the
day of the incident?
A weight of the evidence claim concedes that the evidence is sufficient
to sustain the verdict, but seeks a new trial on the ground that the evidence
was so one-sided or so weighted in favor of acquittal that a guilty verdict
shocks one’s sense of justice. Commonwealth v. Widmer, 744 A.2d 745,
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751–52 (Pa. 2000). When reviewing a weight of the evidence claim, we do
not substitute our judgment for the finder of fact and consider the
underlying question of whether the verdict is against the weight of the
evidence, but, rather, we determine only whether the trial court abused its
discretion in making its determination. Id., 744 A.2d at 753; see also
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013).
As noted above, the trial court found this issue waived. Moreover,
based on our independent review of the record, we find no merit to
Stratton’s challenge to the weight of the evidence. Stratton claims the
verdict shocks the conscience because only Officer Kapusniak saw the
transaction and the officers’ testimony differs with respect to which officer
was driving when the exchange occurred. N.T. 9/9/14, at 66; N.T. 9/10/14,
at 26). We cannot agree that these minor inconsistencies render the
testimony of these witnesses so unreliable as to make the verdict one based
upon surmise or conjecture. In fact, the arrest occurred five years prior to
trial, and Officer Kapusniak acknowledged that he did not recall who was
driving at the time. N.T. 9/9/14, at 66. See Commonwealth v. Hamilton,
546 A.2d 90 (Pa. Super. 1988). See also Commonwealth v. Stokes, 78
A.3d 644, 651 (Pa. Super. 2013) (minor inconsistencies in testimony are for
jury to resolve).
Based upon the foregoing, we find Stratton’s weight of the evidence
claim meritless. We, therefore, affirm the judgment of sentence and grant
counsel’s petition to withdraw.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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