Com. v. Kelly, T.

J-S89015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

TERRANCE KELLY,

Appellant No. 1375 EDA 2015

Appeal from the Judgment of Sentence April 24, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013001-2011

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

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 05, 2016

Appellant, Terrance Kelly, appeals from the judgment of sentence

entered on April 24, 2015, in the Philadelphia County Court of Common

Pleas. Additionally, appellate counsel has filed a petition seeking to

withdraw his representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), which govern withdrawal from representation on direct appeal. After

careful review, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

The record reveals that on August 9, 2011, at approximately 9:00

p.m., Officer Mark Robinson was conducting surveillance on the 1000 block
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*
Former Justice specially assigned to the Superior Court.
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of Ruscomb Street in Philadelphia and investigating illegal drug sales. N.T.,

2/18/15, at 42. Officer Robinson testified that he witnessed Appellant, who

was standing in front of a Chinese take-out store, engage in a brief

conversation with a woman who approached him. Id. at 46. The officer saw

the woman hand Appellant U.S. currency in exchange for a small object that

Appellant retrieved from the waistband of his trousers. Id. Backup officers

arrived, but they were unable to locate the woman after she completed her

transaction with Appellant. Id. at 49. While Officer Robinson continued his

surveillance of Appellant, he testified that he saw an individual in a blue

BMW automobile drive to Appellant’s location on Ruscomb Street. Id.

Appellant then walked up to the driver’s window, and Appellant and the

driver of the BMW engaged in a brief conversation. Id. at 50. During this

conversation, Officer Robinson observed the driver hand Appellant U.S.

currency, and Appellant then handed the driver a small object that Appellant

retrieved from his waistband. Id. The vehicle immediately left the scene.

Id. Backup officers executed a traffic stop of the BMW approximately thirty

seconds later and recovered illegal drugs. Id. At approximately 9:25 p.m.,

Appellant entered a silver-colored Buick that was parked on Ruscomb Street.

Id. at 53. Believing that Appellant was going to drive away, Officer

Robinson requested that the backup officers arrest Appellant. Id. Prior to

the officers arriving on the scene, however, Appellant exited the Buick and

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entered the Chinese store, and the responding officer arrested Appellant

therein. Id.

Following Appellant’s arrest, he was transported to the Philadelphia

Police Thirty-Fifth District building. N.T., 2/18/15, at 55. A search of

Appellant’s person revealed a clear zip-top baggie containing marijuana and

$280.00 in U.S. currency. Id. at 55. The zip-top baggie Appellant

possessed was similar to the baggie recovered from the driver of the BMW.

Id.

Appellant was charged with possession of a controlled substance with

intent to deliver (“PWID”), possession of a controlled substance, and

possession of a small amount of marijuana. On August 28, 2012, a hearing

was held on Appellant’s motion to suppress the physical evidence seized

from Appellant’s person. At the conclusion of the hearing, the trial court

denied Appellant’s suppression motion. N.T., 8/28/12, at 27. This matter

proceeded to a jury trial which began on February 18, 2015, and concluded

on February 20, 2015. At trial, the Commonwealth proceeded on only the

PWID charge. At the conclusion of the trial, the jury found Appellant guilty

of PWID, and on April 24, 2015, the trial court sentenced Appellant to a term

of nine to twenty-three months of incarceration followed by three years of

probation. No post-sentence motions were filed, and this timely appeal

followed.

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Before we address the issues raised in the Anders brief, we must

resolve appellate counsel’s request to withdraw. Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). We note that

there are procedural and briefing requirements imposed upon an attorney

who seeks to withdraw on direct appeal. The procedural mandates are that

counsel must:

1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that after making a conscientious examination

of the record, he concluded that the present appeal is wholly frivolous.

Counsel sent Appellant a copy of the Anders brief and the petition to

withdraw, as well as a letter advising Appellant that he could represent

himself or retain private counsel to represent him.

We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

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

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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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

We are satisfied that counsel has met the requirements set forth in

Santiago. Counsel’s brief sets forth the factual and procedural history of

this case, cites to the record, and refers to an issue that counsel arguably

believes supports the appeal. Anders Brief at 4-9. Further, the brief

includes counsel’s conclusion that the appeal is frivolous, and it contains

pertinent case authority and counsel’s reasons for concluding that the appeal

is frivolous. Id. at 11-15. Accordingly, we address the issues raised in the

Anders brief:

1. Was the evidence sufficient to find [Appellant] guilty beyond a
reasonable doubt of [PWID]?

2. Did the lower court err in failing to suppress evidence?

3. Was [Appellant’s] sentence legal?

Anders Brief at 3.1

In the Anders brief, counsel presents challenges to both the

sufficiency of the evidence and a challenge to the order denying Appellant’s

motion to suppress. When an appellant raises both a challenge to the

sufficiency of the evidence and a suppression issue, we address the

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1
For purposes of our discussion, we have renumbered the issues.

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sufficiency of the evidence supporting the conviction first, and we do so

without a diminished record:

[W]e are called upon to consider all of the testimony that was
presented to the jury during the trial, without consideration
as to the admissibility of that evidence. The question of
sufficiency is not assessed upon a diminished record. Where
improperly admitted evidence has been allowed to be considered
by the jury, its subsequent deletion does not justify a finding of
insufficient evidence. The remedy in such a case is the grant of
a new trial.

Commonwealth v. Sanford, 863 A.2d 428, 432 (Pa. 2004) (quoting

Commonwealth v. Smith, 568 A.2d 600, 603 (Pa. 1989) (emphasis in

original).

With respect to Appellant’s sufficiency claim:

[t]he 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. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.

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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120–121 (Pa. Super. 2005

(citations omitted)).

The crime of PWID is defined as follows:

Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30).

As discussed above, Officer Robinson personally witnessed Appellant

engage in two separate hand-to-hand transactions where individuals handed

Appellant money in exchange for items Appellant had hidden in the

waistband of his pants. A legal search of Appellant’s person following his

arrest revealed a clear zip-top baggie containing marijuana and $280.00 in

U.S. currency, and the zip-top baggie Appellant possessed was similar to the

baggie recovered from the driver of the BMW with whom Appellant had

engaged in a hand-to-hand transaction moments earlier. N.T., 2/18/15, at

55. Moreover, no paraphernalia indicating personal use was discovered in

Appellant’s possession. See Commonwealth v. Ratsamy, 934 A.2d 1233,

1238 (Pa. 2007) (“Possession with intent to deliver can be inferred from the

quantity of the drugs possessed and other surrounding circumstances, such

as lack of paraphernalia for consumption.”). Thus, we conclude that the

evidence was sufficient to establish that Appellant possessed marijuana and,

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in fact, distributed it to another person. The challenge to the sufficiency of

the evidence fails.

Next, counsel presents an argument that the trial court erred in

denying Appellant’s suppression motion. In addressing a challenge to the

denial of a suppression motion, our standard of review:

is limited to determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole.[2] Where the
suppression court’s factual findings are supported by the record,
we are bound by these findings and may reverse only if the
court’s legal conclusions are erroneous. Where ... the appeal of
the determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts. Thus,
the conclusions of law of the courts below are subject to our
plenary review.

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2
In the case of In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court
prospectively applied a new rule regarding the scope of review in
suppression matters. Specifically, the L.J. Court clarified that an appellate
court’s scope of review in suppression matters includes the suppression
hearing record and not evidence elicited at trial. Id. at 1087. However, the
suppression hearing in the case at bar was held on August 28, 2012, and it
predates the decision in L.J. Therefore, the holding in L.J. has no bearing
on our review. Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. 2014).

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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted)).

We reiterate, Officer Robinson personally witnessed Appellant engage

in separate hand-to-hand transactions where individuals handed Appellant

money in exchange for items Appellant had hidden in the waistband of his

pants. Based on his experience and the amount of drug trafficking in the

area, Officer Robinson concluded that the exchanges in which Appellant

engaged were sales of controlled substances and supported probable cause

to arrest Appellant. Moreover, the second transaction, involving the person

in the blue BMW, resulted in a traffic stop and the discovery of a controlled

substance contained in a baggie similar to a baggie found on Appellant. This

testimony, which came from an experienced drug interdiction officer who

observed the hand-to-hand exchanges in a high drug-trafficking area, given

the totality of the circumstances, established probable cause to arrest

Appellant and search Appellant’s person. Commonwealth v. Dixon, 997

A.2d 368, 378 (Pa. Super. 2010). We discern no error or abuse of discretion

in the trial court’s conclusion that the facts presented by the Commonwealth

established probable cause to arrest Appellant, and the trial court properly

denied Appellant’s suppression motion.

Counsel’s final claim of error presented in the Anders brief is that the

sentence that the trial court imposed was illegal. An illegal sentence is one

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that exceeds the statutory limits. Commonwealth v. Bradley, 834 A.2d

1127, 1131 (Pa. 2003) (quotation marks and citation omitted). Issues

concerning the legality of a sentence are questions of law; our standard of

review over such questions is de novo and our scope of review is plenary.

Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super. 2016) (citation

omitted).

Here, Appellant was convicted of PWID marijuana which carries a

maximum sentence of five years for a first offense. 35 P.S. § 780-113(f)(2).

However, this was Appellant’s second offense, and as such, his status as a

recidivist increased the sentence for this conviction to a maximum term of

ten years of incarceration. 35 P.S. § 780-115(a). Appellant received a

sentence of nine to twenty-three months of incarceration followed by three

years of probation. Because Appellant’s sentence is well below the statutory

maximum sentence of ten years, Appellant received a legal sentence, and

there is no merit to this claim.

Finally, we note that we also have independently reviewed the record

in order to determine whether there are any non-frivolous issues present in

this case that Appellant may raise. Commonwealth v. Harden, 103 A.3d

107, 111 (Pa. Super. 2014). Having concluded that there are no meritorious

issues, we grant Appellant’s counsel permission to withdraw, and we affirm

the judgment of sentence.

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Petition of counsel to withdraw is granted. Judgment of sentence

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/5/2016

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