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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEXTER V. SMITH,
Appellant No. 247 MDA 2016
Appeal from the Judgment of Sentence January 8, 2016
in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0003611-2015
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 22, 2016
Appellant, Dexter V. Smith, appeals from the judgment of sentence
imposed January 8, 2016. Appellant’s counsel has filed a brief and a petition
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), alleging that the
appeal is wholly frivolous. We affirm the judgment of sentence and grant
counsel’s request to withdraw.
We take the factual and procedural history in this matter from the trial
court’s March 7, 2016 opinion.
On Saturday, June 27, 2015, just after midnight, Manheim
Township Police Officer Charles S. Wickers was patrolling the
Lancaster Community Park in Lancaster Township in a marked
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*
Retired Senior Judge assigned to the Superior Court.
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police vehicle. The park is closed from sunset to sunrise by
[o]rdinance of Lancaster Township. During his patrol, Officer
Wickers observed Appellant walking, with a backpack, in the
park after hours and stopped him for the ordinance violation.
Appellant provided his Pennsylvania driver’s license for
identification purposes. A search of his name on the National
Crime Information Center (NCIC) database revealed an
outstanding warrant for Appellant through the Pennsylvania
Capital Police for harassment by communication. Appellant was
arrested on that active warrant and, on a search incident to
arrest, was found to be in possession of a small plastic baggie
filled with a vegetable matter. This substance was not found on
his person, but rather in his backpack. Based upon his training
and experience, Officer Wickers recognized the substance as
marijuana. The marijuana was field tested and confirmed to
contain THC, a Schedule I controlled substance. The marijuana
was later weighed at approximately 2.4 grams.
Based on this recovered contraband and his presence in
the park after hours, Appellant was charged with knowing and
intentional possession of a small amount of marijuana, 35 P.S. §
780-113(a)(31), and a summary violation of Lancaster Township
Ordinance 192-3.
On January 8, 2016, following a non-jury trial, Appellant
was found guilty of both charges. Appellant waived his right to a
pre-sentence investigation report and immediately stood for
sentencing. On Count I (possession), Appellant was sentenced
to a fine of $500.00 plus costs, to include all lab expenses, and
on Count II (park hours), Appellant was sentenced only to costs.
Appellant filed a timely [n]otice of [a]ppeal on February 5,
2016. [The trial court] ordered Appellant, on February 9, 2016,
to file a concise statement of [errors] complained of on appeal
pursuant to Pa.[]R.A.P. 192[5](b). In response, Appellant’s
counsel filed a [s]tatement of [i]ntent to file an Anders brief in
lieu of a Rule 1925(b) concise statement pursuant to Pa[]R.A.P.
1925(c)(4), asserting that there are no non-frivolous matters
that can be raised on appeal. . . .
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(Trial Court Opinion, 3/07/16, at 1-3) (record citations and footnotes
omitted). The trial court entered its opinion on March 7, 2016. See
Pa.R.A.P. 1925(a).
When counsel submits an Anders brief, we must first rule on the
petition to withdraw and then review the merits of the underlying issues.
See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010).
Court-appointed counsel who seeks to withdraw from representing an
appellant on direct appeal on the basis that the appeal is frivolous 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 or statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, supra at 361.
Here, counsel has substantially complied with all the requirements of
Anders and Santiago. Specifically, after reviewing the record, including
the bench trial and sentencing transcripts, and concluding that an appeal to
this Court would be wholly frivolous, she has petitioned this Court to
withdraw from representation. (See Application for Leave to Withdraw as
Counsel, 5/03/16, at unnumbered page 2).
In addition, counsel filed a brief with this Court that provides a
summary of the procedural history and facts, refers to any facts or legal
theories that arguably support the appeal, and explains why she believes the
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appeal is wholly frivolous. (See Anders Brief, at 6-17). Finally, she has
attached, as an exhibit to her petition to withdraw, a copy of the letter she
sent to Appellant giving him notice of his rights, and including a copy of the
Anders brief and the petition. (See Application, at unnumbered page 3);
see also Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.
2005) (holding that counsel must attach copy of letter sent to client advising
client of rights).
Because counsel has substantially complied with the requirements of
Anders, Santiago, and Millisock, we will examine the issues set forth in
the Anders brief that counsel believes could have arguable merit. See
Garang, supra at 240–41.
The Anders brief raises six issues for our review:1
[1. Whether the evidence was sufficient] to sustain [Appellant’s]
convictions[?]
[2. Whether the court properly admitted evidence from] the
search of [Appellant’s] backpack incident to arrest[?]
[3. Whether Appellant is entitled to relief because] Officer
Wickers perjured himself at the preliminary hearing because it
was unclear whether the marijuana was field tested[?]
[4. Whether Appellant is entitled to relief because] the cannabis
was tampered with because the initial report by Officer Wickers
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1
The statement of question presented frames the issue as whether counsel
should be permitted to withdraw because any appellate issues are frivolous;
however, in the Anders brief’s argument section, counsel identifies the
issues Appellant wishes to raise. (See Anders Brief, at 5, 8-16).
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stated that the cannabis weighed 2.4 grams while the lab report
indicated the cannabis weighed 1.15 [grams?]
[5. Whether] the court erred because [Appellant’s] trial was
scheduled to start at 1:30 p.m., but the Judge did not take the
bench until 2:30 p.m.[?]
[6. Whether Appellant is entitled to relief because he] was not
afforded a Marsden[2] hearing to speak to the Judge privately in
order to obtain a different court-appointed attorney[?]
(See Anders Brief, at 8, 11, 13-15).3
Appellant’s first issue claims that the evidence was insufficient to
support his convictions for possession of a controlled substance and the
violation of a Lancaster Township Parks Ordinance. (See Anders Brief, at
8-11). We disagree.
“The standard we apply in reviewing the sufficiency of the evidence is
whether viewing all the evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citations
omitted).
An individual commits the offense of possession of a controlled
substance where he “[K]nowingly or intentionally possess[es] a controlled or
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2
People v. Marsden, 465 P.2d 44 (Cal. 1970).
3
The Commonwealth filed a letter stating it would not file a brief. (See
Letter of Assistant District Attorney to Deputy Prothonotary of Pennsylvania
Superior Court, 5/06/16).
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counterfeit substance . . . unless it was obtained directly from, or pursuant
to, a valid prescription order or order of a practitioner[.]” 35 P.S. § 780-
113(a)(16). Lancaster Township Parks Ordinance § 192-3 provides: “All
parks shall be open from sunrise to sunset.” Lancaster Township Park
Ordinance § 192-3.
Here, the Commonwealth presented evidence at trial sufficient to
prove beyond a reasonable doubt that Appellant possessed marijuana, a
controlled substance, and was present in the park after sunset. (See N.T.
Trial, 1/08/16, at 6-8, 13-16, 19, 26-27). Upon review, we conclude that,
viewing the evidence in the light most favorable to the Commonwealth as
verdict winner, it established beyond a reasonable doubt that Appellant
possessed marijuana, and that he was present in the Lancaster Township
Community Park after sunset. See Smith, supra at 790. Appellant’s first
issue does not merit relief.
In his second issue, Appellant argues that the court erred in admitting
evidence of the marijuana because, he claims, it should have been
suppressed as the product of an illegal search. (See Anders Brief, at 11-
14). However, Appellant did not raise this issue before the trial court. “It is
axiomatic that an issue cannot be raised for the first time on appeal.”
Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)
(citations omitted); see Pa.R.A.P. 302(a). Therefore, Appellant’s second
issue does not merit relief.
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In his third issue, Appellant claims that Officer Wickers perjured
himself because he did not have the marijuana tested by the outside lab
before the preliminary hearing, he had only field tested it. (See Anders
Brief, at 13). Appellant’s challenge to the credibility of the evidence
presented by the Commonwealth, is properly characterized as a weight of
the evidence challenge. See Commonwealth v. Wilson, 825 A.2d 710,
713–14 (Pa. Super. 2003). However, Appellant has not raised this issue
with the trial court orally or in writing, or in a post-sentence motion. See
Pa.R.Crim.P. 607. Thus, he has waived this claim. See Commonwealth v.
Griffin, 65 A.3d 932, 938 (Pa. Super. 2013), appeal denied, 76 A.3d 538
(Pa. 2013) (“[A] weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or orally prior
to sentencing. Failure to properly preserve the claim will result in waiver[.]”
(citations omitted)). “Nevertheless, in light of [c]ounsel’s petition to
withdraw, we address Appellant’s contention.” Commonwealth v. Lilley,
978 A.2d 995, 998 (Pa. Super. 2009) (citation omitted).
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
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imperative so that right may be given another opportunity to
prevail.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations and
quotation marks omitted).
Here, Appellant’s challenge to the weight of the evidence, based on
the credibility of Officer Wickers, even if properly preserved, would not merit
relief. At trial, Officer Wickers testified to the following:
Q. Officer Wickers, I believe you testified at [Appellant’s]
preliminary hearing?
A. Yes.
Q. And that was in July of 2015?
A. I believe so.
Q. At that time, had you yet sent the marijuana to the outside
lab?
A. Yes.
Q. Okay.
A. Since then or before then?
Q. Sorry. Before then had you sent it to the lab?
A. No.
Q. But you had field tested it by that point in time?
A. Yes.
(N.T. Trial, at 17-18).
Upon review, Officer Wickers’s credibility was not so undermined by
his misstatement, which he quickly corrected, such that the verdict of guilt
against Appellant shocked one’s sense of justice. See Clay, supra at 1054-
55; Wilson, supra at 713-14. Appellant’s third issue would not merit relief.
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In his fourth issue, Appellant claims that Officer Wickers tampered
with the evidence because he testified that the weight of the marijuana was
2.4 grams whereas Ms. Bruno, the Pennsylvania State Police lab forensic
scientist, testified that the weight was 1.15 grams. (See Anders Brief, at
14). Appellant did not object to Officer Wickers’s testimony at trial, thus he
cannot raise this issue for the first time on appeal. See Hankerson, supra
at 420. Moreover, we note that Officer Wickers clearly testified that he
weighed the suspected marijuana in the packaging, whereas, Ms. Bruno
testified that she weighed the marijuana with the packaging removed. (See
N.T. Trial, at 17, 27-28). Appellant’s fourth issue is meritless.
In his fifth issue, Appellant claims that the trial court erred because
“his trial was scheduled to start at 1:30 p.m., but the Judge did not take the
bench until 2:30 p.m.” (Anders Brief, at 14). We agree with counsel that
Appellant’s issue is frivolous.
In his sixth and final issue, Appellant claims that the court erred
because it did not conduct a Marsden hearing4 after he requested that the
court appoint a different attorney to represent him. (See id. at 15). We
disagree.
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4
The Supreme Court of California in Marsden, supra, held that the trial
court erred by not holding a hearing to determine whether the defendant
was entitled to a change of appointed counsel after he alleged that counsel’s
representation was inadequate. See Marsden, supra at 47-48.
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Our Supreme Court has explained, “the right to appointed counsel
does not include the right to counsel of the defendant’s choice.”
Commonwealth v. Albrecht, 720 A.2d 693, 709 (Pa. 1998). “A motion for
change of counsel by a defendant for whom counsel has been appointed
shall not be granted except for substantial reasons.” Pa.R.Crim.P. 122(C).
“Whether a motion for change of counsel should be granted is within the
sound discretion of the trial court and will not be disturbed on appeal absent
abuse of discretion.” Commonwealth v. Cook, 952 A.2d 594, 617 (Pa.
2008) (citations omitted).
Here, at the beginning of trial, Appellant alleged that he was having
conflict issues with his appointed attorney and requested that the trial court
appoint a new public defender. (See N.T. Trial, at 3-4). The court explained
to Appellant that he had the right to hire his own attorney, proceed with the
attorney who had been court appointed, or proceed without an attorney.
(See id. at 4). Appellant chose to proceed with his appointed counsel.
Upon review, we conclude that the trial court did not abuse its
discretion in denying Appellant’s request for new appointed counsel. See
Cook, supra at 617; Albrecht, supra at 709; Pa.R.Crim.P. 122(C).
Appellant’s sixth issue does not merit relief.
Appellant’s issues do not merit relief. Furthermore, this Court has
conducted an independent review of the record and finds that no non-
frivolous issues exist.
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Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2016
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Com. v. Smith, D.
Combined Opinion